UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d)

OF THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): May 31, 2013

 

 

 

LOGO

FREEPORT-McMoRan COPPER & GOLD INC.

 

 

 

Delaware   001-11307-01   74-2480931

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

333 North Central Avenue, Phoenix, AZ 85004-2189

(Address of principal executive offices) (Zip Code)

(602) 366-8100

(Registrant’s telephone number, including area code)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


Introductory Note.

This current report on Form 8-K is being filed in connection with (i) the completion on May 31, 2013, of the transactions contemplated by the Agreement and Plan of Merger, dated as of December 5, 2012 (the “PXP Merger Agreement”), by and among Plains Exploration & Production Company, a Delaware corporation (“PXP”), Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (“FCX”), and Freeport-McMoRan Oil & Gas LLC (formerly, IMONC LLC), a Delaware limited liability company and wholly owned subsidiary of FCX (“PXP Merger Sub”), and (ii) the completion on June 3, 2013 of the transactions contemplated by the Agreement and Plan of Merger, dated as of December 5, 2012, (the “MMR Merger Agreement”), by and among McMoRan Exploration Co. (“MMR”), FCX and INAVN Corp., a Delaware corporation and wholly owned subsidiary of FCX (“MMR Merger Sub”). Pursuant to the PXP Merger Agreement, on May 31, 2013, PXP merged with and into PXP Merger Sub (the “PXP Merger”), with PXP Merger Sub continuing as the surviving company and a wholly owned subsidiary of FCX, and pursuant to the MMR Merger Agreement, on June 3, 2013, MMR Merger Sub merged with and into MMR (the “MMR Merger”), with MMR continuing as the surviving corporation and a wholly owned subsidiary of FCX. The events described in this Current Report on Form 8-K occurred in connection with the consummation of the PXP Merger and/or the MMR Merger.

 

Item 1.01. Entry into a Material Definitive Agreement.

PXP Supplemental Indenture

On May 31, 2013, PXP, FCX, PXP Merger Sub, FCX Oil & Gas Inc., a Delaware corporation and wholly owned subsidiary of FCX (“FCX Oil”), and Wells Fargo Bank, N.A., as trustee (the “Trustee”), entered into an Eighteenth Supplemental Indenture dated as of May 31, 2013 (the “Eighteenth Supplemental Indenture”) to the Indenture dated as March 13, 2007 (as amended and supplemented to date, including by the Eighteenth Supplemental Indenture, the “Indenture”), among PXP, the subsidiary guarantors party thereto (the “Subsidiary Guarantors”) and the Trustee, relating to PXP’s outstanding 7.625% Senior Notes due 2018, 6.125% Senior Notes due 2019, 8.625% Senior Notes due 2019, 7.625% Senior Notes due 2020, 6.50% Senior Notes due 2020, 6.625% Senior Notes due 2021, 6.75% Senior Notes due 2022 and 6.875% Senior Notes due 2023 (collectively, the “Outstanding PXP Notes”).

Pursuant to the Eighteenth Supplemental Indenture, PXP Merger Sub and FCX Oil assumed all of PXP’s obligations under the Indenture and each series of Outstanding PXP Notes. Additionally, FCX agreed to fully and unconditionally guarantee all payment obligations of PXP Merger Sub and FCX Oil with respect to the Outstanding PXP Notes and to assume PXP’s previous reporting obligations under the Indenture.

As a result of transactions ancillary to the PXP Merger, each Subsidiary Guarantor no longer had outstanding any guarantee of any indebtedness (other than the Outstanding PXP Notes) of PXP or any other Subsidiary Guarantor in excess of $10.0 million in aggregate principal amount and, therefore, was automatically released and relieved of any obligations under its respective subsidiary guarantee with respect to each series of the Outstanding PXP Notes pursuant to the terms of the Indenture.


The foregoing description of the Eighteenth Supplemental Indenture does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Eighteenth Supplemental Indenture, which is included as Exhibit 4.1 hereto.

FCX Senior Notes Supplemental Indentures

On May 31, 2013, FCX and PXP Merger Sub entered into a Fourth Supplemental Indenture (the “FCX 2012 Notes Supplemental Indenture”) to the Indenture, dated as of February 13, 2012, as amended and supplemented to date, between FCX and U.S. Bank National Association, as trustee, which governs FCX’s outstanding 1.40% Senior Notes due 2015, 2.15% Senior Notes due 2017 and 3.55% Senior Notes due 2022 (collectively, the “FCX 2012 Notes”). As a result of the PXP Merger and subject to the terms and conditions of the FCX 2012 Notes Supplemental Indenture, PXP Merger Sub agreed to fully and unconditionally guarantee all payment obligations of FCX with respect to the FCX 2012 Notes.

Also on May 31, 2013, FCX and PXP Merger Sub entered into a Supplemental Indenture (the “FCX 2013 Notes Supplemental Indenture”), to the Indenture dated as of March 7, 2013, between FCX and U.S. Bank National Association, as trustee, which governs FCX’s outstanding 2.375% Senior Notes due 2018, 3.100% Senior Notes due 2020, 3.875% Senior Notes due 2023 and 5.450% Senior Notes due 2043 (collectively, the “FCX 2013 Notes”). As a result of the PXP Merger and subject to the terms and conditions of the FCX 2013 Notes Supplemental Indenture, PXP Merger Sub agreed to fully and unconditionally guarantee all payment obligations of FCX with respect to the FCX 2013 Notes.

The foregoing descriptions of the FCX 2012 Notes Supplemental Indenture and the FCX 2013 Notes Supplemental Indenture do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the FCX 2012 Notes Supplement Indenture and the FCX 2013 Notes Supplemental Indenture, which are included, respectively, as Exhibit 4.2 and Exhibit 4.3 hereto.

MMR Supplemental Indentures

11.875% Supplemental Indenture

In connection with the closing of the MMR Merger, MMR, FCX and The Bank of New York Mellon, a New York banking corporation (the “11.875% Trustee”), entered into a Second Supplemental Indenture dated as of June 3, 2013 (the “11.875% Supplemental Indenture”) to the Indenture dated as of November 14, 2007 (as amended and supplemented to date, the “11.875% Indenture”), among MMR, the subsidiary guarantors party thereto (the “11.875% Notes Subsidiary Guarantors”) and the 11.875% Trustee, relating to MMR’s outstanding 11.875% Senior Notes due 2014 (the “11.875% Notes”).

Pursuant to the 11.875% Supplemental Indenture, FCX agreed to fully and unconditionally guarantee all payment obligations of MMR with respect to the 11.875% Notes and to assume MMR’s reporting obligations under the 11.875% Indenture.

In connection with the closing of the MMR Merger, on June 3, 2013, MMR terminated its Amended and Restated Credit Agreement, dated as of June 30, 2011, among MMR, as parent, McMoRan Oil & Gas LLC, as borrower, JPMorgan Chase Bank, N.A., as administrative agent and issuing lender, and the other lenders party thereto from time to time following the repayment of all amounts outstanding thereunder. As a result of such termination, each 11.875% Notes Subsidiary Guarantor was automatically released and relieved of any obligations under its respective subsidiary guarantee and the 11.875% Indenture.


The foregoing description of the 11.875% Supplemental Indenture does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the 11.875% Supplemental Indenture, which is included as Exhibit 4.4 hereto.

4% Supplemental Indenture

In connection with the closing of the MMR Merger, MMR and U.S. Bank National Association, a national banking association (the “4% Trustee”), entered into a First Supplemental Indenture dated as of June 3, 2013 (the “4% Supplemental Indenture”) to the Indenture dated as of December 30, 2010 (as amended and supplemented to date, the “4% Indenture”), between MMR and the 4% Trustee, relating to MMR’s outstanding 4% Convertible Senior Notes due 2017 (the “4% Notes”).

Pursuant to the 4% Supplemental Indenture, the 4% Notes will be convertible into the merger consideration that the holders of the 4% Notes would have been entitled to receive upon the closing of MMR Merger had such 4% Notes been converted into shares of MMR’s common stock immediately prior to the closing of the MMR Merger.

The foregoing description of the 4% Supplemental Indenture does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the 4% Supplemental Indenture, which is included as Exhibit 4.5 hereto.

5  1 / 4 % Supplemental Indenture

In connection with the closing of the MMR Merger, MMR and The Bank of New York Mellon Trust Company, N.A., a national banking association (the “5  1 / 4 % Trustee”), entered into a First Supplemental Indenture dated as of June 3, 2013 (the “5  1 / 4 % Supplemental Indenture”) to the Indenture dated as of September 13, 2012 (as amended and supplemented to date, the “5  1 / 4 % Indenture”), between MMR and the 5  1 / 4 % Trustee, relating to MMR’s outstanding 5  1 / 4 % Convertible Senior Notes due 2013 (the “5  1 / 4 % Notes”).

Pursuant to the 5  1 / 4 % Supplemental Indenture, the 5  1 / 4 % Notes will be convertible into the merger consideration that the holders of the 5  1 / 4 % Notes would have been entitled to receive upon the closing of MMR Merger had such 5  1 / 4 % Notes been converted into shares of MMR’s common stock immediately prior to the closing of the MMR Merger.

The foregoing description of the 5  1 / 4 % Supplemental Indenture does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the 5  1 / 4 % Supplemental Indenture, which is included as Exhibit 4.6 hereto.

 

Item 1.02. Termination of a Material Definitive Agreement.

The information in Item 2.03 of this Current Report on Form 8-K under the heading “Revolving Credit Agreement” is incorporated by reference in this Item 1.02.


Item 2.01. Completion of Acquisition or Disposition of Assets.

Completion of the PXP Merger

On May 31, 2013, FCX and PXP Merger Sub completed the acquisition of PXP pursuant to the PXP Merger Agreement. Under the terms of the PXP Merger Agreement, PXP merged with and into PXP Merger Sub, with PXP Merger Sub continuing as the surviving company and a wholly owned subsidiary of FCX.

At the effective time of the PXP Merger on May 31, 2013 (the “Effective Time”), each share of PXP’s common stock issued and outstanding immediately prior to the Effective Time (other than shares owned or held by PXP in treasury immediately prior to the Effective Time) was converted into the right to receive the total per share consideration equivalent in value to approximately $46.01 based on the average of the closing prices of FCX common stock on the New York Stock Exchange (the “NYSE”) for the ten trading days ending on May 22, 2013, which was $32.17 (the “FCX Ten Day Price”). Pursuant to the terms of the PXP Merger Agreement, PXP stockholders were entitled to elect to receive the per share consideration in either shares of FCX common stock or cash. Based on the FCX Ten Day Price, the per share stock consideration is approximately 1.4302 shares of FCX common stock (the “Stock Consideration”) and the per share cash consideration is approximately $46.01 (the “Cash Consideration”). These amounts do not include the previously disclosed special one-time cash dividend of $3.00 per share, which was declared, with FCX’s consent, by PXP’s Board of Directors on May 20, 2013, payable to PXP stockholders as of May 30, 2013, the record date for such dividend.

The election deadline for the merger consideration was May 15, 2013. Based on the final results of the merger consideration elections and the terms of the PXP Merger Agreement:

 

   

holders of approximately 45.5% of PXP’s outstanding shares, or approximately 60,231,439 shares (including holders of certain restricted shares and restricted stock units that were entitled to make a merger consideration election under the terms of the PXP Merger Agreement (collectively, “electing equity award holders”)), elected and will receive the Stock Consideration;

 

   

holders of approximately 29.1% of PXP’s outstanding shares, or approximately 38,503,126 shares (including electing equity award holders), elected and will receive the Cash Consideration; and

 

   

holders of approximately 25.4% of PXP’s outstanding shares, or approximately 33,550,726 shares (including electing equity award holders), did not make a valid election or did not deliver a valid election form prior to the election deadline and will receive approximately 99.5% of their merger consideration in cash equal to approximately $46.01 for each share of PXP common stock and the remainder of their merger consideration in shares of FCX common stock at an exchange ratio of approximately 1.4302 shares of FCX common stock for each share of PXP common stock.

No fractional shares of FCX common stock will be issued in the PXP Merger, and PXP stockholders will receive cash in lieu of fractional shares of FCX common stock, if any, they would otherwise be entitled to receive as a result of the PXP Merger.

The description of the terms of the PXP Merger Agreement contained in this Item 2.01 does not purport to be complete and is qualified in its entirety by reference to the PXP Merger Agreement, which is incorporated herein by reference to Exhibit 2.1 of FCX’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on December 6, 2012.


Completion of the MMR Merger

On June 3, 2013, pursuant to the terms and conditions of the MMR Merger Agreement, MMR Merger Sub merged with and into MMR, with MMR surviving the MMR Merger as a wholly owned subsidiary of FCX.

At the effective time of the MMR Merger, each outstanding share of MMR common stock (other than shares owned by FCX and its subsidiaries and shares held by stockholders who properly exercise dissenters’ rights) was converted into the right to receive $14.75 in cash, without interest, and 1.15 royalty trust units representing beneficial interests in Gulf Coast Ultra Deep Royalty Trust. Holders of royalty trust units will be entitled to share in a 5% gross overriding royalty interest in hydrocarbons saved and produced from MMR’s existing shallow water Gulf of Mexico and onshore Gulf Coast ultra-deep exploration prospects. Cash will be paid in lieu of any fractional royalty trust units.

The description of the terms of the MMR Merger Agreement contained in this Item 2.01 does not purport to be complete and is qualified in its entirety by reference to the MMR Merger Agreement, which is incorporated herein by reference to Exhibit 2.2 to FCX’s Current Report on Form 8-K filed with the SEC on December 6, 2012.

MMR Merger - Certain Relationships

FM Services . MMR is party to a services agreement with FM Services Company, a wholly owned subsidiary of FCX, under which FM Services Company provides MMR with executive, technical, administrative, accounting, financial, tax and other services pursuant to a fixed fee arrangement. FM Services Company also provides these services to FCX. In 2012, MMR incurred approximately $7.7 million of costs under the services agreement.

Overlapping Directors and Officers . Prior to the MMR Merger, several of FCX’s directors and officers also served as directors or executive officers of MMR. James R. Moffett, Richard C. Adkerson, B.M. Rankin, Jr., Robert A. Day, Gerald J. Ford and H. Devon Graham, Jr., each of whom served as a director of MMR, serve as directors of FCX. Messrs. Moffett and Adkerson and Kathleen L. Quirk, each of whom served as an executive officer of MMR, serve as executive officers of FCX. In addition, Nancy D. Parmelee, previously an executive officer of MMR, serves as an officer of FCX. As of April 26, 2013, the overlapping board members and executive officers beneficially owned 9,070,442 shares of MMR common stock or about 5.6% of the outstanding shares of MMR common stock.

2010 Transaction . On December 30, 2010, MMR issued 500,000 shares of its 5.75% Convertible Perpetual Preferred Stock, Series 2 to Freeport-McMoRan Preferred LLC, a wholly owned subsidiary of FCX.

 

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

Supplemental Indentures

See Item 1.01 above, which is incorporated into this Item 2.03 by reference.


Term Loan

On May 31, 2013, in connection with the PXP Merger, FCX borrowed an aggregate of $4.0 billion under its term loan agreement (the “Term Loan Agreement”), dated February 14, 2013, with JPMorgan Chase Bank, N.A. (“JPMorgan”), as administrative agent, Bank of America, N.A. (“BofA”), as syndication agent, HSBC Bank USA, National Association (“HSBC”), Mizuho Corporate Bank, Ltd. (“Mizuho”), Sumitomo Mitsui Banking Corporation (“Sumitomo”), The Bank of Nova Scotia (“Bank of Nova Scotia”) and The Bank of Tokyo-Mitsubishi UFJ, Ltd. (“Bank of Tokyo-Mitsubishi”), as co-documentation agents, the other Borrower party thereto and the Lenders party thereto. Also on May 31, 2013, PXP Merger Sub executed a joinder agreement pursuant to which it joined the Term Loan Agreement as a borrower thereunder. The material terms of the Term Loan Agreement are set forth in FCX’s Current Report on Form 8-K filed with the SEC on February 19, 2013, and incorporated herein by reference.

Revolving Credit Agreement

On May 31, 2013, in connection with the PXP Merger, FCX satisfied all conditions to borrowing under its revolving credit agreement (the “Revolving Credit Agreement”), dated as of February 14, 2013, among FCX, PT Freeport Indonesia (“PTFI”), JPMorgan, as administrative agent and the swingline lender, BofA, as syndication agent, BNP Paribas, Citibank, N.A., HSBC, Mizuho, Sumitomo, Bank of Nova Scotia and Bank of Tokyo-Mitsubishi., as co-documentation agents, the other Borrower party thereto and the Lenders and issuing banks party thereto. Also on May 31, 2013, PXP Merger Sub executed a joinder agreement pursuant to which it joined the Revolving Credit Agreement as a borrower thereunder. No borrowings have been made under the Revolving Credit Agreement as of June 3, 2013. The material terms of the Revolving Credit Agreement are set forth in FCX’s Current Report on Form 8-K filed with the SEC on February 19, 2013, and incorporated herein by reference.

The Revolving Credit Agreement refinances and replaces FCX’s previous revolving credit agreement dated as of March 30, 2011, among FCX, PTFI, the lenders party thereto from time to time and JPMorgan, as administrative agent (the “Existing Revolving Credit Agreement”). FCX elected, in accordance with the terms of the Existing Revolving Credit Agreement, to terminate all of the commitments under the Existing Revolving Credit Agreement, with such termination effective May 31, 2013.

 

Item 3.03. Material Modification to Rights of Security Holders.

The information in Item 1.01 of this Current Report on Form 8-K under the heading “FCX Senior Notes Supplemental Indentures” is incorporated by reference in this Item 3.03.

 

Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.

Effective May 31, 2013, in connection with the acquisition of PXP, the Board of Directors of FCX (the “Board of Directors”) increased its size from 12 members to 15 members. Pursuant to the terms of the PXP Merger Agreement, the Board of Directors elected Mr. James C. Flores, formerly Chairman, President and Chief Executive Officer of PXP, as a Vice Chairman of the Board of Directors and also elected to the Board of Directors Messrs. Alan R. Buckwalter, III and Thomas A. Fry, III, each formerly a member of the Board of Directors of PXP. Also effective May 31, 2013, the Board of Directors elected Mr. Richard C. Adkerson, FCX’s President and Chief Executive Officer and a member of the Board of Directors, as a Vice Chairman of the Board of Directors and elected Mr. Flores as Chief Executive Officer of FCX’s oil and gas business.


Item 8.01. Other Events.

On May 31, 2013, FCX issued a press release in connection with the completion of the PXP Merger. A copy of the press release is attached hereto as Exhibit 99.1.

On May 31, 2013, FCX issued a press release announcing the election of Messrs. Flores, Buckwalter and Fry to the Board of Directors. A copy of the press release is attached hereto as Exhibit 99.2.

On May 31, 2013, FCX issued a press release announcing that the Board of Directors declared a supplemental dividend of $1.00 per share of FCX common stock to be paid on July 1, 2013 to FCX stockholders of record as of June 14, 2013. A copy of the press release is attached hereto as Exhibit 99.3.

On June 3, 2013, FCX and MMR issued a joint press release announcing the results of the MMR special meeting of stockholders. A copy of the press release is attached hereto as Exhibit 99.4.

On June 3, 2013, FCX issued a press release in connection with the completion of the MMR Merger. A copy of the press release is attached hereto as Exhibit 99.5.

 

Item 9.01. Financial Statements and Exhibits.

(a) Financial Statements of Businesses Acquired.

FCX intends to file the financial statements required by Item 9.01(a) under cover of Form 8-K/A no later than 71 calendar days after the date this Current Report on Form 8-K was required to be filed.

(b) Pro Forma Financial Information.

FCX intends to file pro forma financial information under cover of Form 8-K/A no later than 71 calendar days after the date this Current Report on Form 8-K was required to be filed.

(d) Exhibits.

The exhibits included as part of this Current Report on Form 8-K are listed in the attached Exhibit Index.


SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

FREEPORT-McMoRan COPPER & GOLD INC.
By:  

/s/ C. Donald Whitmire, Jr.

  C. Donald Whitmire, Jr.
  Vice President and Controller -
  Financial Reporting
  (authorized signatory and
  Principal Accounting Officer)

Date: June 3, 2013


EXHIBIT INDEX

 

Exhibit
No.

  

Description

  2.1    Agreement and Plan of Merger, dated as of December 5, 2012, by and among Plains Exploration & Production Company, Freeport-McMoRan Copper & Gold Inc. and Freeport-McMoRan Oil & Gas LLC (formerly, IMONC LLC), incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by FCX with the SEC on December 6, 2012.
  2.2    Agreement and Plan of Merger, dated as of December 5, 2012, by and among McMoRan Exploration Co., Freeport-McMoRan Copper & Gold Inc. and INAVN Corp., incorporated by reference to Exhibit 2.2 to the Current Report on Form 8-K filed by FCX with the SEC on December 6, 2012.
  4.1    Eighteenth Supplemental Indenture, dated as of May 31, 2013, among Freeport-McMoRan Oil & Gas LLC, as Successor Issuer, FCX Oil & Gas Inc., as Co-Issuer, Freeport-McMoRan Copper & Gold Inc., as Parent Guarantor, Plains Exploration & Production Company, as Original Issuer, and Wells Fargo Bank, N.A., as trustee (relating to the Outstanding PXP Notes).
  4.2    Fourth Supplemental Indenture, dated as of May 31, 2013, among Freeport-McMoRan Copper & Gold Inc., Freeport-McMoRan Oil & Gas LLC and U.S. Bank National Association, as trustee (relating to the FCX 2012 Notes).
  4.3    Supplemental Indenture, dated as of May 31, 2013, among Freeport-McMoRan Copper & Gold Inc., Freeport-McMoRan Oil & Gas LLC and U.S. Bank National Association, as trustee (relating to the FCX 2013 Notes).
  4.4    Second Supplemental Indenture, dated as of June 3, 2013, by and among McMoRan Exploration Co., Freeport-McMoRan Copper & Gold Inc., as Parent Guarantor, and The Bank of New York Mellon, as trustee (relating to the 11.875% Senior Notes due 2014).
  4.5    First Supplemental Indenture, dated as of June 3, 2013, by and among McMoRan Exploration Co. and U.S. Bank National Association, as trustee (relating to the 4% Convertible Senior Notes due 2017).
  4.6    First Supplemental Indenture, dated as of June 3, 2013, between McMoRan Exploration Co. and The Bank of New York Mellon Trust Company, N.A., as trustee (relating to the 5  1 / 4 % Convertible Senior Notes due 2013).
99.1    Press release of Freeport-McMoRan Copper & Gold Inc. dated May 31, 2013, titled “Freeport-McMoRan Copper & Gold Inc. Completes Acquisition of Plains Exploration & Production Company”.
99.2    Press release of Freeport-McMoRan Copper & Gold Inc. dated May 31, 2013, titled “Freeport-McMoRan Copper & Gold Inc. Announces Election of Three New Members to its Board of Directors”.


99.3    Press release of Freeport-McMoRan Copper & Gold Inc. dated May 31, 2013, titled “Freeport-McMoRan Copper & Gold Inc. Declares $1.00 per Share Supplemental Common Stock Dividend”.
99.4    Joint press release of Freeport-McMoRan Copper & Gold Inc. and McMoRan Exploration Co. dated June 3, 2013, titled “Freeport-McMoRan Copper & Gold Inc. and McMoRan Exploration Co. Announce MMR Shareholders Approve Acquisition”.
99.5    Joint press release of Freeport-McMoRan Copper & Gold Inc. and McMoRan Exploration Co. dated June 3, 2013, titled “Freeport-McMoRan Copper & Gold Inc. Completes Oil & Gas Transactions Creating a Premier U.S. Based Natural Resource Company”.
Table of Contents

Exhibit 4.1

EXECUTION VERSION

 

 

FREEPORT-MCMORAN OIL & GAS LLC,

Successor Issuer,

FCX OIL & GAS INC.,

Co-Issuer,

FREEPORT-MCMORAN COPPER & GOLD INC.,

Parent Guarantor,

PLAINS EXPLORATION & PRODUCTION COMPANY,

Original Issuer,

and

WELLS FARGO BANK, N.A.,

Trustee

EIGHTEENTH SUPPLEMENTAL INDENTURE

Dated as of May 31, 2013

To

INDENTURE

Dated as of March 13, 2007

 

 

 


Table of Contents

TABLE OF CONTENTS

 

 

 

     P AGE  
ARTICLE 1   
R EPRESENTATIONS OF THE S UCCESSOR I SSUER , THE C O -I SSUER , THE P ARENT G UARANTOR
AND THE O RIGINAL I SSUER
    

Section 1.01. Good Standing

     3   

Section 1.02. Authorization

     3   

Section 1.03. No Default

     3   

Section 1.04. Consolidated Net Worth

     3   

Section 1.05. Without Consent of Holders

     4   
ARTICLE 2   
A SSUMPTION AND A GREEMENTS   

Section 2.01. Assumption of Obligations

     4   

Section 2.02. Notation of Securities

     4   

Section 2.03. Discharge of Original Issuer

     4   
ARTICLE 3   
P ARENT G UARANTEE   

Section 3.01. The Parent Guarantee

     4   

Section 3.02. Parent Guarantee Unconditional

     5   

Section 3.03. Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances

     5   

Section 3.04. Waiver by the Parent Guarantor

     6   

Section 3.05. Subrogation

     6   

Section 3.06. Stay of Acceleration

     6   

Section 3.07. Notation of Parent Guarantee Not Required

     6   

Section 3.08. Release of Parent Guarantor

     6   

Section 3.09. Benefits Acknowledged

     6   
ARTICLE 4   
A MENDMENT OF I NDENTURE   

Section 4.01. Defined Terms

     7   

Section 4.02. Amendment of Section 5.1 of the Indenture

     7   

Section 4.03. Amendment of Section 5.2 of the Indenture

     10   

Section 4.04. Amendment of Section 10.7 of the Indenture

     11   
ARTICLE 5   
M ISCELLANEOUS   

Section 5.01. General References

     12   

Section 5.02. Effectiveness of Eighteenth Supplemental Indenture

     12   

 

i


Table of Contents

Section 5.03. Indenture Remains in Full Force and Effect

     12   

Section 5.04. Supplemental Indenture Controls

     13   

Section 5.05. No Recourse Against Others

     13   

Section 5.06. Notices and Demands

     13   

Section 5.07. Benefits of Supplemental Indenture

     13   

Section 5.08. Successors and Assigns

     14   

Section 5.09. Severability

     14   

Section 5.10. Governing Law

     14   

Section 5.11. Counterparts

     14   

Section 5.12. Headings

     14   

Section 5.13. Obligations Under Indenture

     14   

Section 5.14. Trustee Disclaimer

     14   

 

ii


Table of Contents

EIGHTEENTH SUPPLEMENTAL INDENTURE, dated as of May 31, 2013 (this “ Eighteenth Supplemental Indenture ”), by and among FREEPORT-MCMORAN OIL & GAS LLC (f/k/a IMONC LLC), a Delaware limited liability company (the “ Successor Issuer ”), FCX OIL & GAS INC., a Delaware corporation and the direct wholly owned subsidiary of the Parent Guarantor (the “ Co-Issuer ”), FREEPORT-MCMORAN COPPER & GOLD INC., a Delaware corporation (the “ Parent Guarantor ”), PLAINS EXPLORATION & PRODUCTION COMPANY, a Delaware corporation (the “ Original Issuer ”), and WELLS FARGO BANK, N.A., a nationally chartered banking association, as trustee under the Indenture referred to below (in such capacity, the “ Trustee ”). All capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Indenture (as defined below).

RECITALS

WHEREAS, the Original Issuer, certain subsidiary guarantors and the Trustee have heretofore executed and delivered an indenture, dated as of March 13, 2007 (as amended, supplemented or otherwise modified from time to time, including without limitation pursuant to this Eighteenth Supplemental Indenture, the “ Indenture ”);

WHEREAS, the following series of Securities have been issued pursuant to the Indenture and are outstanding as of the date of this Eighteenth Supplemental Indenture: the 7.625% Senior Notes due 2018, 8.625% Senior Notes due 2019, 7.625% Senior Notes due 2020, 6.625% Senior Notes due 2021, 6.75% Senior Notes due 2022, 6.125% Senior Notes due 2019, 6.50% Senior Notes due 2020 and 6.875% Senior Notes due 2023 (collectively, the “ Outstanding Notes ”);

WHEREAS, each of Arguello Inc., Latigo Petroleum, Inc., Plains Acquisition Corporation, Plains Resources Inc., Pogo Partners, Inc., PXP Producing Company LLC, PXP Aircraft LLC, PXP Gulf Coast LLC, PXP Louisiana L.L.C., PXP Louisiana Operations LLC and PXP Offshore LLC is a Restricted Subsidiary that is obligated under a Subsidiary Guarantee with respect to the Outstanding Notes as of the date of this Eighteenth Supplemental Indenture (each, an “ Existing Subsidiary Guarantor ” and collectively, the “ Existing Subsidiary Guarantors ”);

WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of December 5, 2012 (as amended, supplemented or otherwise modified to the date hereof, the “ Merger Agreement ”), by and among the Original Issuer, the Parent Guarantor and the Successor Issuer, the Original Issuer will be merged with and into the Successor Issuer, with the Successor Issuer continuing as the surviving company and a direct wholly owned subsidiary of the Parent Guarantor (the “ Merger ” and the time at which the Merger becomes effective in accordance with Section 1.3 of the Merger Agreement, the “ Merger Effective Time ”);

WHEREAS, prior to the date of this Eighteenth Supplemental Indenture, the Original Issuer was designated the “Company” under the Indenture, and Section 8.1 of the Indenture provides, among other things, that the Company may merge into any other Person if the Person surviving any such merger is a limited liability company organized


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or existing under the laws of any state of the United States, such Person assumes all the obligations of the Company under the Securities and the Indenture pursuant to agreements reasonably satisfactory to the Trustee and certain other conditions are complied with, provided that a corporate co-issuer shall be added to the Indenture by agreements reasonably satisfactory to the Trustee;

WHEREAS, the parties hereto desire to amend the Indenture to, among other things, evidence the succession by each of the Successor Issuer and the Co-Issuer to the Original Issuer and the assumption by each of the Successor Issuer and the Co-Issuer of all the obligations of the “Company” under the Securities and the Indenture as of the Merger Effective Time;

WHEREAS, Section 14.5 of the Indenture provides, among other things, that each Guarantor will be released and relieved of any obligations under its Subsidiary Guarantee with respect to any series of the Outstanding Notes at such time as such Guarantor does not have outstanding any Guarantee of any Indebtedness (other than such series of the Outstanding Notes) of the Company or any Guarantor in excess of $10.0 million in aggregate principal amount;

WHEREAS, in connection with the Merger, the Parent Guarantor has repaid the debt outstanding under the Original Issuer’s Amended and Restated Credit Agreement dated as of November 30, 2012, among the Original Issuer, the lenders party thereto, JPMorgan Chase Bank, N.A., as administrative agent, Bank of America, N.A. and Royal Bank of Canada, as co-syndication agents, and The Bank of Nova Scotia and Toronto Dominion (New York) LLC, as co-documentation agents, and as of the time of such repayment, each Existing Subsidiary Guarantor did not have outstanding any Guarantee of any Indebtedness (other than the Outstanding Notes) of the Company or any Guarantor in excess of $10.0 million in aggregate principal amount and therefore was automatically released and relieved of any obligations under its respective Subsidiary Guarantee with respect to each series of the Outstanding Notes pursuant to Section 14.5 of the Indenture;

WHEREAS, Section 9.1 of the Indenture provides, among other things, that, without the consent of any holder of a Security, the Company, the Guarantors and the Trustee may amend or supplement the Indenture, the Securities Guarantees or the Securities (i) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company in the Indenture and, to the extent applicable, to the Securities and (ii) to make any change to any provision of the Indenture that does not adversely affect the rights or interests of any Holder of Securities; and

WHEREAS, Section 10.7 of the Indenture provides, among other things, that, if the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless continue filing with the SEC the annual reports, quarterly reports and current reports that the Company would be required to file with the SEC on Forms 10-K, 10-Q and 8-K under the Exchange Act if the Company were required to file such reports;

 

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WHEREAS, in connection with the Merger, the Original Issuer will cease to be a reporting company under the Exchange Act and will cease to have an obligation, other than pursuant to the Indenture, to file reports with the SEC on Forms 10-K, 10-Q and 8-K;

WHEREAS, as of the Merger Effective Time, the Parent Guarantor desires to (i) fully and unconditionally guarantee all payment obligations of the Company with respect to the Outstanding Notes on the terms set forth herein and (ii) assume the reporting obligations set forth in Section 10.7 of the Indenture in lieu of the Company for so long as such guarantee is in effect;

WHEREAS, the Original Issuer has requested that the Trustee execute and deliver this Eighteenth Supplemental Indenture pursuant to Section 9.1 of the Indenture, and all conditions precedent and requirements necessary to make this Eighteenth Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been complied with, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized.

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Successor Issuer, the Co-Issuer, the Parent Guarantor, the Original Issuer and the Trustee agree as follows:

ARTICLE 1

R EPRESENTATIONS OF THE S UCCESSOR I SSUER , THE C O -I SSUER , THE P ARENT G UARANTOR

AND THE O RIGINAL I SSUER

Each of the Successor Issuer, the Co-Issuer, the Parent Guarantor and the Original Issuer represents and warrants to the Trustee, with respect to itself and in each case only to the extent applicable, as follows:

Section 1.01. Good Standing. It is a limited liability company or corporation duly formed or organized, validly existing and, to the extent applicable, in good standing under the laws of its respective state of incorporation or formation as set forth in the preamble hereto.

Section 1.02. Authorization. The execution, delivery and performance by it of this Eighteenth Supplemental Indenture have been authorized and approved by all necessary action on its part.

Section 1.03. No Default. Immediately after the Merger, no Default or Event of Default will exist.

Section 1.04. Consolidated Net Worth. The Successor Issuer will have Consolidated Net Worth immediately after the Merger equal to or greater than the Consolidated Net Worth of the Original Issuer immediately preceding the Merger.

 

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Section 1.05. Without Consent of Holders . This Eighteenth Supplemental Indenture is executed and delivered pursuant to Sections 9.1(b) and 9.1(g) of the Indenture and does not require the consent of any Holder of any Outstanding Notes.

ARTICLE 2

A SSUMPTION AND A GREEMENTS

Section 2.01. Assumption of Obligations . Each of the Successor Issuer and the Co-Issuer hereby agrees, as of the Merger Effective Time, to assume, to be bound by and to be jointly and severally liable, as a primary obligor and not as a guarantor or surety, with respect to, any and all obligations of the Company under the Indenture and the Securities on the terms and subject to the conditions set forth in the Indenture.

Section 2.02. Notation of Securities . Securities authenticated and delivered after the Merger Effective Time may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in this Eighteenth Supplemental Indenture.

Section 2.03. Discharge of Original Issuer . At the Merger Effective Time, the Successor Issuer and the Co-Issuer shall succeed to, and be substituted for, the Original Issuer (so that from and after the Merger Effective Time, the provisions of the Indenture and the Securities referring to the “Company” shall refer instead to the Successor Issuer and the Co-Issuer and not to the Original Issuer) and may exercise every right and power of the Company under the Indenture and the Securities, with the same effect as if the Successor Issuer and the Co-Issuer had been named as the Company therein. When the Successor Issuer and the Co-Issuer assume all of the Original Issuer’s obligations under the Indenture and the Securities, the Original Issuer shall be discharged from those obligations.

ARTICLE 3

P ARENT G UARANTEE

The Parent Guarantor hereby agrees that:

Section 3.01. The Parent Guarantee . Subject to the provisions of this Article Three, the Parent Guarantor hereby agrees, as of the Merger Effective Time, to fully and unconditionally guarantee the full and punctual payment (whether at maturity, upon acceleration, upon redemption or otherwise) of the principal of (and premium, if any) and interest on, and all other amounts payable under, each series of the Outstanding Notes, and the full and punctual payment of all other amounts payable by the Company to the Holders of each series of the Outstanding Notes under the Indenture (the “ Parent Guarantee ”). Upon the failure by the Company to fully and punctually pay any such amount, the Parent Guarantor shall forthwith on demand pay the amount not so paid at the place and in the manner specified in the Indenture.

 

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Section 3.02. Parent Guarantee Unconditional . The Parent Guarantee shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:

(a) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Company under the Indenture or any series of the Outstanding Notes, by operation of law or otherwise;

(b) any modification or amendment of, or supplement to, the Indenture or any series of the Outstanding Notes (other than a modification, amendment or supplement effected in accordance with the terms of the Indenture which expressly releases, discharges or otherwise affects the Parent Guarantee);

(c) any change in the corporate existence, structure or ownership of the Company, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company or its assets or any resulting release or discharge of any obligation of the Company contained in the Indenture or any series of the Outstanding Notes;

(d) the existence of any claim, set-off or other right that the Parent Guarantor may have at any time against the Company, the Trustee or any other Person, whether in connection with the Indenture or an unrelated transaction, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;

(e) any invalidity, irregularity or unenforceability relating to, or against the Company for any reason of, the Indenture or any series of the Outstanding Notes, or any provision of applicable law or regulation purporting to prohibit the payment by the Company of the principal of or interest on any series of the Outstanding Notes or any other amount payable by the Company under the Indenture; or

(f) any other act or omission to act or delay of any kind by the Company, the Trustee or any other Person or any other circumstance whatsoever which might, but for the provisions of this Section 3.02, constitute a legal or equitable discharge of or defense to the Parent Guarantor’s obligations hereunder (other than an act contemplated by the parenthetical in Section 3.02(b) above).

Section 3.03. Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances . Subject to Section 3.08, the Parent Guarantee shall remain in full force and effect until the principal of (and premium, if any) and interest on, and all other amounts payable under, each series of the Outstanding Notes, and all other amounts payable by the Company to the Holders of each series of the Outstanding Notes under the Indenture have been paid in full. If at any time any payment of the principal of (or premium, if any) or interest on, or any other amounts payable under, any series of the Outstanding Notes or any other amount payable by the Company to the Holders of any series of the Outstanding Notes under the Indenture is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Company or otherwise, the Parent Guarantee with respect to such payment shall be reinstated as though such payment had been due but not made at such time.

 

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Section 3.04. Waiver by the Parent Guarantor . The Parent Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Company or any other Person.

Section 3.05. Subrogation . The Parent Guarantor agrees that, until the indefeasible payment and satisfaction in full in cash of all applicable obligations under the Outstanding Notes, the Parent Guarantee and the Indenture with respect to the Outstanding Notes, the Parent Guarantor shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of the Parent Guarantee, whether by subrogation or otherwise, against the Company.

Section 3.06. Stay of Acceleration . If acceleration of the time for payment of any amount payable by the Company to the Holders of any series of Outstanding Notes under the Indenture or the Outstanding Notes is stayed upon the insolvency, bankruptcy or reorganization of the Company, all such amounts otherwise subject to acceleration under the terms of the Indenture are nonetheless payable by the Parent Guarantor hereunder forthwith on demand by the Trustee or the Holders of such series of Outstanding Notes.

Section 3.07. Notation of Parent Guarantee Not Required . The Parent Guarantor acknowledges that the Parent Guarantee shall remain in full force and effect notwithstanding the absence on any Outstanding Note of a notation relating to the Parent Guarantee.

Section 3.08. Release of Parent Guarantor . The Parent Guarantor’s obligations under the Parent Guarantee shall terminate upon (a) satisfaction and discharge of the Indenture pursuant to Article Four of the Indenture or (b) Legal Defeasance or Covenant Defeasance pursuant to Article Thirteen of the Indenture.

Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the foregoing effect, the Trustee shall execute any documents reasonably required in order to evidence the release of the Parent Guarantor from its obligations under the Parent Guarantee.

Section 3.09. Benefits Acknowledged . The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that the guarantee and waivers made by the Parent Guarantor pursuant to the Parent Guarantee are knowingly made in contemplation of such benefits.

ARTICLE 4

A MENDMENT OF I NDENTURE

With respect to the Outstanding Notes, the Indenture is hereby amended as set forth below in this Article Four; provided, however , that each such amendment shall apply only to the Outstanding Notes and not to any other series of Securities issued under the Indenture.

 

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Section 4.01. Defined Terms. Subject to the limitations set forth in the preamble to Article Four of this Eighteenth Supplemental Indenture, Section 1.1 of the Indenture is hereby amended by inserting or restating, as the case may be, each of the following defined terms in its appropriate alphabetical position:

“Company” means Freeport-McMoRan Oil & Gas LLC and FCX Oil & Gas Inc. until a successor or resulting corporation shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor or resulting corporation.

“Parent Guarantee” has the meaning given to such term in Section 3.01 to the Eighteenth Supplemental Indenture hereto, dated as of May 31, 2013.

“Parent Guarantor” means Freeport-McMoRan Copper & Gold Inc., but only for so long as Freeport-McMoRan Copper & Gold Inc. remains obligated under the Parent Guarantee pursuant to the terms of the Eighteenth Supplemental Indenture hereto, dated as of May 31, 2013.

Section 4.02. Amendment of Section 5.1 of the Indenture . Subject to the limitations set forth in the preamble to Article Four of this Eighteenth Supplemental Indenture, Section 5.1 of the Indenture is hereby amended and restated to read in its entirety as follows:

“Section 5.1 Events of Default .

(a) Each of the following is an “Event of Default”:

(i) default in any payment of interest on any Note under this Indenture when due, continued for 30 days;

(ii) default in the payment of principal of or premium, if any, on any Note under this Indenture when due at its Stated Maturity, upon optional redemption, upon mandatory redemption (solely with respect to the 6.50% Senior Notes due 2020 and 6.875% Senior Notes due 2023), upon required repurchase, upon declaration or otherwise;

(iii) failure by the Company to comply with its obligations under Article Eight of this Indenture or to consummate a purchase of Notes when required pursuant to Section 10.12 or Section 10.15 of this Indenture;

(iv) failure by the Company or any of its Restricted Subsidiaries for 30 days after receipt of a written notice (sent by registered or certified mail, specifying such failure, requiring it to be remedied and stating that such notice is a “Notice of Default” under this Indenture) from the Trustee or the Holders of at least 25% in aggregate principal amount of the then Outstanding Notes to comply with Section 10.9 or Section 10.11 of this Indenture or to comply with the provisions described under Section 10.12 or Section 10.15 of this Indenture to the extent not described in clause (iii) of this Section 5.1(a);

 

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(v)(A) except as addressed in subclause (B) of this clause (v), failure by the Company or any of its Restricted Subsidiaries for 60 days after receipt of a written notice (sent by registered or certified mail, specifying such failure, requiring it to be remedied and stating that such notice is a “Notice of Default” under this Indenture) from the Trustee or the Holders of at least 25% in aggregate principal amount of the then Outstanding Notes to comply with any of the other agreements in this Indenture or the Notes or (B) failure by the Parent Guarantor for 180 days after such notice from the Trustee or the Holders of at least 25% in aggregate principal amount of the then Outstanding Notes to comply with Section 10.7 of this Indenture;

(vi) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Restricted Subsidiaries (or the payment of which is guaranteed by the Company or any of its Restricted Subsidiaries), other than Indebtedness owed to the Company or a Restricted Subsidiary, whether such Indebtedness or guarantee now exists, or is created after the Issue Date, which default:

(A) is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness (“ payment default ”); or

(B) results in the acceleration of such Indebtedness prior to its maturity;

and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a payment default or the maturity of which has been so accelerated, aggregates $50.0 million or more;

(vii) failure by the Company or any Significant Subsidiary or group of Restricted Subsidiaries that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary to pay final judgments aggregating in excess of $50.0 million (net of any amounts that a reputable and creditworthy insurance company has acknowledged liability for in writing), which judgments are not paid, discharged or stayed for a period of 60 days;

(viii) any Subsidiary Guarantee shall be held in a judicial proceeding, or be asserted by the Company or any Guarantor, as applicable, not to be, enforceable or valid or shall cease to be in full force and effect (except pursuant to the release or termination of any such Subsidiary Guarantee in accordance with this Indenture);

(ix) the Company, any Significant Subsidiary of the Company or any group of Restricted Subsidiaries of the Company that, taken together (as of the

 

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latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Company, pursuant to or within the meaning of Bankruptcy Law:

(A) commences a voluntary case,

(B) consents to the entry of an order for relief against it in an involuntary case,

(C) makes a general assignment for the benefit of its creditors, or

(D) generally is not paying its debts as they become due; and

(x) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(A) is for relief against the Company, any Significant Subsidiary of the Company or any group of Restricted Subsidiaries of the Company that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Company, in an involuntary case; or

(B) appoints a custodian of the Company, any Significant Subsidiary of the Company or any group of Restricted Subsidiaries of the Company that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Company, or for all or substantially all of the property of the Company, any Significant Subsidiary of the Company or any group of Restricted Subsidiaries of the Company that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Company; or

(C) orders the liquidation of the Company, any Significant Subsidiary of the Company or any group of Restricted Subsidiaries of the Company that, taken together (as of the latest audited consolidated financial statements for the Company and its Restricted Subsidiaries), would constitute a Significant Subsidiary of the Company;

and the order or decree remains unstayed and in effect for 60 consecutive days.

(b) The Company shall, so long as any of the Notes are Outstanding, deliver to the Trustee, within five Business Days after any Officer becomes aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.”

 

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Section 4.03. Amendment of Section 5.2 of the Indenture. Subject to the limitations set forth in the preamble to Article Four of this Eighteenth Supplemental Indenture, Section 5.2 of the Indenture is hereby amended and restated to read in its entirety as follows:

“Section 5.2. Acceleration of Maturity; Rescission and Annulment; Interest Rate Increase .

(a) To the extent permitted by applicable law, in the case of an Event of Default specified in clause (ix) or clause (x) of Section 5.1(a) of this Indenture, all then Outstanding Notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in aggregate principal amount of the then Outstanding Notes may declare all the Notes to be due and payable immediately by notice in writing to the Company and, in case of a notice by Holders, also to the Trustee specifying the respective Event of Default and that it is a notice of acceleration. Upon any such declaration, the Notes shall become due and payable immediately.

(b) At any time after such a declaration of acceleration with respect to the Notes has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article Five provided, the Holders of a majority in principal amount of the Outstanding Notes, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if:

(i) the Company or one or more of the Guarantors has paid or deposited with the Trustee a sum sufficient to pay:

(A) all overdue interest on all Notes,

(B) the principal of (and premium, if any, on) any Notes which have become due otherwise than by such declaration of acceleration and any interest thereon at the rate or rates prescribed therefor in such Notes,

(C) to the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Notes, and

(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and

(ii) all Events of Default with respect to the Notes, other than the non-payment of the principal of the Notes which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.13 of this Indenture.

(iii) No such rescission shall affect any subsequent default or impair any right consequent thereon.

 

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(c) Notwithstanding the foregoing Section 5.2(b), if an Event of Default specified in clause (vi) of Section 5.1(a) above shall have occurred and be continuing, such Event of Default and any consequential acceleration shall be automatically rescinded if (i) the Indebtedness that is the subject of such Event of Default has been repaid, or (ii) if the default relating to such Indebtedness is waived or cured and if such Indebtedness has been accelerated, then the holders thereof have rescinded their declaration of acceleration in respect of such Indebtedness.

(d) Upon any failure by the Parent Guarantor for 60 days to comply with Section 10.7 of this Indenture, the interest rate on the Notes will increase by 50 basis points (0.5%) and remain at such increased rate thereafter but only for so long as there is a Default under such Section 10.7, and upon resumption of compliance by the Parent Guarantor with such Section 10.7, the interest rate on the Notes will be reset at the initial rate applicable on the Issue Date.”

Section 4.04. Amendment of Section 10.7 of the Indenture. Subject to the limitations set forth in the preamble to Article Four of this Eighteenth Supplemental Indenture, Section 10.7 of the Indenture is hereby amended and restated to read in its entirety as follows:

“Section 10.7 Reports .

(a) Regardless of whether required by the rules and regulations of the SEC, so long as any Notes are Outstanding, the Parent Guarantor will file with the SEC for public availability, within the time periods specified in the SEC’s rules and regulations (unless the SEC will not accept such a filing, in which case the Parent Guarantor will furnish to the Holders of Notes or cause the Trustee to furnish to the Holders of Notes, within the time periods specified in the SEC’s rules and regulations):

(i) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K under the Exchange Act if the Parent Guarantor were required to file such reports; and

(ii) all current reports that would be required to be filed with the SEC on Form 8-K under the Exchange Act if the Parent Guarantor were required to file such reports.

The Parent Guarantor shall be deemed to have furnished such reports to the Trustee and the Holders if it has filed such reports with the SEC using the SEC’s Electronic Data Gathering, Analysis and Retrieval System, or any successor system, and such reports are publicly available.

(b) All such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports. Each annual report on Form 10-K will include a report on the Parent Guarantor’s consolidated financial statements by the Parent Guarantor’s certified independent accountants.

 

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(c) If, at any time, the Parent Guarantor is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Parent Guarantor will nevertheless continue filing the reports specified in Section 10.7(a) with the SEC within the time periods specified above unless the SEC will not accept such a filing. The Parent Guarantor will not take any action for the purpose of causing the SEC not to accept any such filings. If, notwithstanding the foregoing, the SEC will not accept the Parent Guarantor’s filings for any reason, the Parent Guarantor will post the reports referred to in the preceding paragraphs on its website within the time periods that would apply if the Parent Guarantor were required to file those reports with the SEC.

(d) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then, to the extent material, the quarterly and annual financial information required by the preceding paragraphs of this Section 10.7 will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” of the financial condition and results of operations of the Parent Guarantor, the Company and the Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries.”

ARTICLE 5

M ISCELLANEOUS

Section 5.01. General References . Unless otherwise specified or unless the context otherwise requires, (i) all references in this Eighteenth Supplemental Indenture to Articles and Sections refer to the corresponding Articles and Sections of this Eighteenth Supplemental Indenture and (ii) the terms “ herein ,” “ hereof ,” “ hereunder ” and any other word of similar import refers to this Eighteenth Supplemental Indenture.

Section 5.02. Effectiveness of Eighteenth Supplemental Indenture . Notwithstanding anything to the contrary elsewhere herein, this Eighteenth Supplemental Indenture shall become effective only as of the Merger Effective Time. Promptly after the Merger Effective Time, the Successor Issuer shall provide notice thereof to the Trustee. If the Original Issuer notifies the Trustee in writing that the Merger Effective Time will not occur, then the provisions hereof shall not become effective. Upon the effectiveness of this Eighteenth Supplemental Indenture, the Indenture shall be and be deemed to be modified and amended in accordance herewith and the respective rights, limitations of rights, obligations, duties and immunities under the Indenture of the Trustee, the Company and the Holders affected thereby shall hereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of this Eighteenth Supplemental Indenture shall be and be deemed to be part of the terms and conditions of the Indenture for any and all purposes.

Section 5.03. Indenture Remains in Full Force and Effect. Except as amended and supplemented hereby, all provisions in the Indenture shall remain in full force and effect and are in all respects ratified and confirmed.

 

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Section 5.04. Supplemental Indenture Controls . If there is any conflict or inconsistency between the Indenture and this Eighteenth Supplemental Indenture, the provisions of this Eighteenth Supplemental Indenture shall control.

Section 5.05. No Recourse Against Others. No past, present or future director, officer, employee, incorporator or shareholder of the Parent Guarantor or any successor of the Parent Guarantor shall have any liability by reason of his, her or its status as such under or upon any obligation, covenant or agreement of the Parent Guarantor contained in this Eighteenth Supplemental Indenture, the Indenture or the Outstanding Notes, or because of any indebtedness evidenced thereby, all such liability being expressly waived and released by the Holders of the Outstanding Notes by their acceptance of the Parent Guarantee and as part of the consideration for the making of the Parent Guarantee.

Section 5.06. Notices and Demands. (a) Any notice, demand, direction, request or other document that is required or permitted by any provision of this Eighteenth Supplemental Indenture or the Indenture to be given or made by the Trustee or by the Holders of any series of Outstanding Notes to or upon the Successor Issuer or the Co-Issuer shall be given or made by postage-prepaid, first-class mail addressed (until another address of the Successor Issuer or the Co-Issuer is filed by the Successor Issuer or the Co-Issuer, as applicable, with the Trustee) c/o Freeport-McMoRan Copper & Gold Inc., 333 North Central Avenue, Phoenix, Arizona 85004-2189, Attention: FCX Treasurer.

(b) Any notice, demand, direction, request or other document that is required or permitted by any provision of this Eighteenth Supplemental Indenture or the Indenture to be given or made by the Trustee or by the Holders of any series of Outstanding Notes to or upon the Parent Guarantor shall be given or made by postage-prepaid, first-class mail addressed (until another address of the Parent Guarantor is filed by the Parent Guarantor with the Trustee) to Freeport-McMoRan Copper & Gold Inc., 333 North Central Avenue, Phoenix, Arizona 85004-2189, Attention: FCX Treasurer.

(c) Any notice, demand, direction, request or other document that is required or permitted by any provision of this Eighteenth Supplemental Indenture or the Indenture to be given or made by the Parent Guarantor to or upon the Trustee or the Holders of any series of Outstanding Notes shall be given or made in accordance with Section 1.6 of the Indenture. As of the date of this Eighteenth Supplemental Indenture, the address for any such notice, demand, direction, request or other document to be given or made to or upon the Trustee is 750 N. St. Paul Place, Suite 1750, Dallas, Texas 75201, Attention: Corporate Trust, Municipal and Escrow Services.

Section 5.07. Benefits of Supplemental Indenture. Nothing in this Eighteenth Supplemental Indenture, express or implied, shall give or be construed to give to any Person, other than the parties hereto, any Authenticating Agent, any Paying Agent, any Security Registrar, any successors to the foregoing hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under the Indenture or this Eighteenth Supplemental Indenture.

 

13


Table of Contents

Section 5.08. Successors and Assigns. All covenants and agreements in this Eighteenth Supplemental Indenture made by the Successor Issuer, the Co-Issuer, the Parent Guarantor, the Original Issuer or the Trustee shall bind their respective successors and assigns, whether so expressed or not.

Section 5.09. Severability. If any provision of this Eighteenth Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby, and no Holder of any series of Outstanding Notes shall have any claim therefor against any party hereto.

Section 5.10. Governing Law. This Eighteenth Supplemental Indenture and the rights and duties of the parties hereunder shall be governed by, and construed in accordance with, the laws of the State of New York (without giving effect to any provision thereof relating to conflicts of laws principles that would apply the laws of another jurisdiction), except to the extent that the Trust Indenture Act is applicable.

Section 5.11. Counterparts. This Eighteenth Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

Section 5.12. Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.

Section 5.13. Obligations Under Indenture. For the avoidance of doubt, the Parent Guarantor shall not be bound by any obligations or covenants under the Indenture except as set forth in this Eighteenth Supplemental Indenture or as otherwise required by the Trust Indenture Act.

Section 5.14. Trustee Disclaimer . The Trustee accepts the amendments of the Indenture effected by this Eighteenth Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Successor Issuer, the Co-Issuer, the Parent Guarantor and the Original Issuer, as applicable, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this Eighteenth Supplemental Indenture.

[The remainder of this page is intentionally left blank]

 

14


Table of Contents

IN WITNESS WHEREOF, the parties hereto have caused this Eighteenth Supplemental Indenture to be duly executed as of the day and year first written above.

 

FREEPORT-MCMORAN OIL & GAS
    LLC,

    as Successor Issuer

By:  

/s/ Kathleen L. Quirk

 

Name:

  Kathleen L. Quirk
 

Title:

  Executive Vice President & Treasurer

FCX OIL & GAS INC.,

    as Co-Issuer

By:  

/s/ Kathleen L. Quirk

 

Name:

  Kathleen L. Quirk
 

Title:

  Executive Vice President

FREEPORT-MCMORAN COPPER &
    GOLD INC.,

    as Parent Guarantor

By:  

/s/ Kathleen L. Quirk

  Name:   Kathleen L. Quirk
  Title:   Executive Vice President, Chief Financial Officer & Treasurer

PLAINS EXPLORATION &
    PRODUCTION COMPANY,

    as Original Issuer

By:  

/s/ Winston M. Talbert

  Name:   Winston M. Talbert
  Title:   Executive Vice President & Chief Financial Officer

[Signature Page to Eighteenth Supplemental Indenture]


Table of Contents

WELLS FARGO BANK, N.A.,

    as Trustee

By:  

/s/ Patrick T. Giordano

  Name:   Patrick T. Giordano
  Title:   Vice President

[Signature Page to Eighteenth Supplemental Indenture]

Exhibit 4.2

EXECUTION VERSION

FREEPORT-MCMORAN COPPER & GOLD INC.,

Company,

FREEPORT-MCMORAN OIL & GAS LLC,

Guarantor

and

U.S. BANK NATIONAL ASSOCIATION,

Trustee

 

 

FOURTH SUPPLEMENTAL INDENTURE

Dated as of May 31, 2013

to

Indenture dated as of February 13, 2012

 

 

 


FOURTH SUPPLEMENTAL INDENTURE (this “ Fourth Supplemental Indenture ”), dated as of May 31, 2013, among FREEPORT-MCMORAN COPPER & GOLD INC., a Delaware corporation (the “ Company ”), FREEPORT-MCMORAN OIL & GAS LLC (f/k/a IMONC LLC), a Delaware limited liability company (the “ Guarantor ”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee (the “ Trustee ”) under the Indenture as defined below. All capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Indenture.

RECITALS

WHEREAS, the Company and the Trustee have heretofore executed and delivered an indenture, dated as of February 13, 2012 (as amended, supplemented or otherwise modified to the date hereof, the “ Indenture ”), providing for the issuance from time to time of Securities;

WHEREAS, the Company has issued the following series of Securities pursuant to the Indenture: the 1.40% Senior Notes due 2015, 2.15% Senior Notes due 2017 and 3.55% Senior Notes due 2022;

WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of December 5, 2012 (as amended, supplemented or otherwise modified to the date hereof, the “ Merger Agreement ”), by and among Plains Exploration & Production Company (“ PXP ”), the Company and the Guarantor, PXP will be merged with and into the Guarantor, with the Guarantor continuing as the surviving company and a direct wholly owned subsidiary of the Company (the “ Merger ,” and the time at which the Merger becomes effective in accordance with Section 1.3 of the Merger Agreement, the “ Merger Effective Time ”);

WHEREAS, as of the Merger Effective Time, the Guarantor desires to fully and unconditionally guarantee all payment obligations of the Company with respect to the Securities on the terms set forth herein;

WHEREAS, Section 9.01 of the Indenture provides, among other things, that the Company and the Trustee may from time to time and at any time enter into an indenture supplemental to the Indenture, without the consent of the Securityholders, to make any change that does not adversely affect the rights of any Securityholder in any material respect;

WHEREAS, the Company has requested that the Trustee execute and deliver this Fourth Supplemental Indenture pursuant to Section 9.05 of the Indenture; and


WHEREAS, all conditions precedent and requirements necessary to make this Fourth Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been complied with, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized.

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements, provisions and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company, the Guarantor and the Trustee agree as follows:

ARTICLE 1

G UARANTEE

The Guarantor hereby agrees that:

Section 1.01 . The Guarantee. Subject to the provisions of this Article 1, the Guarantor hereby agrees, as of the Merger Effective Time, to fully and unconditionally guarantee the full and punctual payment (whether at maturity, upon acceleration, upon redemption or otherwise) of the principal of (and premium, if any) and interest on, and all other amounts payable under, the Securities, and the full and punctual payment of all other amounts payable by the Company to the Securityholders under the Indenture (the “ Guarantee ”). Upon the failure by the Company to fully and punctually pay any such amount, the Guarantor shall forthwith on demand pay the amount not so paid at the place and in the manner specified in the Indenture.

Section 1.02 . Guarantee Unconditional. The Guarantee shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:

(a) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Company under the Indenture or the Securities, by operation of law or otherwise;

(b) any modification or amendment of, or supplement to, the Indenture or the Securities (other than a modification, amendment or supplement effected in accordance with the terms of the Indenture which expressly releases, discharges or otherwise affects the Guarantee);

(c) any change in the corporate existence, structure or ownership of the Company, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company or its assets or any resulting release or discharge of any obligation of the Company contained in the Indenture or the Securities;

 

2


(d) the existence of any claim, set-off or other right that the Guarantor may have at any time against the Company, the Trustee or any other Person, whether in connection with the Indenture or an unrelated transaction, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;

(e) any invalidity, irregularity or unenforceability relating to, or against the Company for any reason of, the Indenture or the Securities, or any provision of applicable law or regulation purporting to prohibit the payment by the Company of the principal of or interest on the Securities or any other amount payable by the Company under the Indenture; or

(f) any other act or omission to act or delay of any kind by the Company, the Trustee or any other Person or any other circumstance whatsoever which might, but for the provisions of this Section 1.02, constitute a legal or equitable discharge of or defense to the Guarantor’s obligations hereunder (other than an act contemplated by the parenthetical in Section 1.02(b) above).

Section 1.03 . Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances. Subject to Section 1.08, the Guarantee shall remain in full force and effect until the principal of (and premium, if any) and interest on, and all other amounts payable under, the Securities, and all other amounts payable by the Company to the Securityholders under the Indenture have been paid in full. If at any time any payment of the principal of (or premium, if any) or interest on, or any other amounts payable under, the Securities or any other amount payable by the Company to the Securityholders under the Indenture is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Company or otherwise, the Guarantee with respect to such payment shall be reinstated as though such payment had been due but not made at such time.

Section 1.04 . Waiver by the Guarantor. The Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Company or any other Person.

Section 1.05 . Subrogation. The Guarantor agrees that, until the indefeasible payment and satisfaction in full in cash of all applicable obligations under the Securities, the Guarantee and the Indenture, the Guarantor shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of the Guarantee, whether by subrogation or otherwise, against the Company.

Section 1.06 . Stay of Acceleration. If acceleration of the time for payment of any amount payable by the Company to the Securityholders under the

 

3


Indenture or the Securities is stayed upon the insolvency, bankruptcy or reorganization of the Company, all such amounts otherwise subject to acceleration under the terms of the Indenture are nonetheless payable by the Guarantor hereunder forthwith on demand by the Trustee or the Securityholders.

Section 1.07 . Notation of Guarantee Not Required. The Guarantor acknowledges that the Guarantee shall remain in full force and effect notwithstanding the absence on any Security of a notation relating to the Guarantee.

Section 1.08 . Release of Guarantor. The Guarantor’s obligations under the Guarantee shall terminate upon (a) satisfaction and discharge of the Indenture pursuant to Article 11 of the Indenture or (b) legal defeasance or covenant defeasance pursuant to Article 11 of the Indenture.

Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the foregoing effect, the Trustee shall execute any documents reasonably required in order to evidence the release of the Guarantor from its obligations under the Guarantee.

Section 1.09 . Benefits Acknowledged. The Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that the guarantee and waivers made by the Guarantor pursuant to the Guarantee are knowingly made in contemplation of such benefits.

ARTICLE 2

A MENDMENT OF I NDENTURE

The Indenture is hereby amended as set forth below in this Article 2.

Section 2.01. Amendment of Section 5.03(a) of the Indenture . Section 5.03(a) is hereby amended and restated to read in its entirety as follows:

“(a) The Company covenants and agrees to file with the Trustee, within 30 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act, provided that so long as such filings by the Company are available on the Commission’s Electronic Data Gathering, Analysis and Retrieval System, or any successor system, such filings shall be deemed to have been filed with the Trustee for purposes hereof without any further action required by the Company; or, if the

 

4


Company is not required to file information, documents or reports pursuant to either of such sections, then to file with the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations.”

ARTICLE 3

M ISCELLANEOUS

Section 3.01 . Effectiveness of Fourth Supplemental Indenture. Notwithstanding anything to the contrary elsewhere herein, this Fourth Supplemental Indenture shall become effective only as of the Merger Effective Time. Promptly after the Merger Effective Time, the Company shall provide notice thereof to the Trustee. If the Guarantor notifies the Trustee in writing that the Merger Effective Time will not occur, then the provisions hereof shall not become effective. Upon the effectiveness of this Fourth Supplemental Indenture, the Indenture shall be and be deemed to be modified and amended in accordance herewith and the respective rights, limitations of rights, obligations, duties and immunities under the Indenture of the Trustee, the Company and the Securityholders affected thereby shall hereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of this Fourth Supplemental Indenture shall be and be deemed to be part of the terms and conditions of the Indenture for any and all purposes.

Section 3.02 . Indenture Remains in Full Force and Effect. Except as amended and supplemented hereby, all provisions in the Indenture shall remain in full force and effect and are in all respects ratified and confirmed.

Section 3.03. Fourth Supplemental Indenture Controls . If there is any conflict or inconsistency between the Indenture and this Fourth Supplemental Indenture, the provisions of this Fourth Supplemental Indenture shall control.

Section 3.04 . No Recourse Against Others. No past, present or future director, officer, employee, incorporator or shareholder of the Guarantor or any successor of the Guarantor shall have any liability by reason of his, her or its status as such under or upon any obligation, covenant or agreement of the Guarantor contained in this Fourth Supplemental Indenture, the Indenture or the Securities, or because of any indebtedness evidenced thereby, all such liability being expressly waived and released by the Securityholders by their acceptance of the Guarantee and as part of the consideration for the making of the Guarantee.

 

5


Section 3.05 . Notices and Demands. (a) Any notice, demand, direction, request or other document that is required or permitted by any provision of this Fourth Supplemental Indenture or the Indenture to be given or made by the Trustee or by any Securityholder to or upon the Guarantor shall be given or made by postage-prepaid, first-class mail addressed (until another address of the Guarantor is filed by the Guarantor with the Trustee) c/o Freeport-McMoRan Copper & Gold Inc., 333 North Central Avenue, Phoenix, Arizona 85004-2189, Attention: FCX Treasurer.

(b) Any notice, demand, direction, request or other document that is required or permitted by any provision of this Fourth Supplemental Indenture or the Indenture to be given or made by the Guarantor or by any Securityholder to or upon the Trustee shall be given or made in accordance with Section 13.04 of the Indenture. As of the date of this Fourth Supplemental Indenture, the address for any such notice, demand, direction, request or other document to be given or made to or upon the Trustee is 5555 San Felipe Blvd., Suite 1150, Houston, TX 77056.

Section 3.06 . Benefits of Fourth Supplemental Indenture. Nothing in this Fourth Supplemental Indenture, express or implied, shall give or be construed to give to any Person, other than the parties hereto, any Authenticating Agent, any paying agent, any Security Registrar, any successors to the foregoing hereunder and the Securityholders, any benefit or any legal or equitable right, remedy or claim under the Indenture or this Fourth Supplemental Indenture.

Section 3.07 . Successors and Assigns. All covenants and agreements in this Fourth Supplemental Indenture made by the Company, the Guarantor or the Trustee shall bind their respective successors and assigns, whether so expressed or not.

Section 3.08 . Severability. If any provision of this Fourth Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby, and no Securityholder shall have any claim therefor against any party hereto.

SECTION 3.09 . GOVERNING LAW. THIS FOURTH SUPPLEMENTAL INDENTURE AND THE RIGHTS AND DUTIES OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY PROVISION THEREOF RELATING TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD APPLY THE LAWS OF ANOTHER JURISDICTION), EXCEPT TO THE EXTENT THAT THE TRUST INDENTURE ACT IS APPLICABLE.

 

6


Section 3.10 . Counterparts. This Fourth Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

Section 3.11 . Headings. The Article and Section headings herein are for convenience only and shall not affect the construction hereof.

Section 3.12. Trustee Disclaimer. The Trustee accepts the amendments of the Indenture effected by this Fourth Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company and the Guarantor, as applicable, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture.

Section 3.13 . Obligations Under Indenture. For the avoidance of doubt, the Guarantor shall not be bound by any obligations or covenants under the Indenture except as set forth in this Fourth Supplemental Indenture or as otherwise required by the Trust Indenture Act.

[The remainder of this page is intentionally left blank]

 

7


IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be duly executed as of the day and year first written above.

 

FREEPORT-MCMORAN COPPER &
    GOLD INC.
By:  

/s/ Kathleen L. Quirk

  Name:   Kathleen L. Quirk
  Title:   Executive Vice President, Chief Financial Officer & Treasurer

FREEPORT-MCMORAN OIL & GAS
    LLC,

    as Guarantor

By:  

/s/ Kathleen L. Quirk

  Name:   Kathleen L. Quirk
  Title:   Executive Vice President & Treasurer
U.S. BANK NATIONAL
    ASSOCIATION,
    as Trustee
By:  

/s/ Mauri J. Cowen

  Name:    Mauri J. Cowen
  Title:   Vice President

[Signature Page to Fourth Supplemental Indenture]

Exhibit 4.3

EXECUTION VERSION

FREEPORT-MCMORAN COPPER & GOLD INC.,

Company,

FREEPORT-MCMORAN OIL & GAS LLC,

Guarantor

and

U.S. BANK NATIONAL ASSOCIATION,

Trustee

 

 

SUPPLEMENTAL INDENTURE

Dated as of May 31, 2013

to

Indenture dated as of March 7, 2013

 

 

 


SUPPLEMENTAL INDENTURE (this “ Supplemental Indenture ”) dated as of May 31, 2013, among FREEPORT-MCMORAN OIL & GAS LLC (f/k/a IMONC LLC) (the “ New Guarantor ”), a Delaware limited liability company and a subsidiary of FREEPORT-MCMORAN COPPER & GOLD INC. (or its successor), a Delaware corporation (the “ Company ”), the Company and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee under the indenture referred to below (the “ Trustee ”).

W I T N E S S E T H :

WHEREAS the Company has heretofore executed and delivered to the Trustee an Indenture (the “ Indenture ”) dated as of March 7, 2013 providing for the issuance of the Company’s 2.375% Senior Notes due 2018, 3.100% Senior Notes due 2020, 3.875% Senior Notes due 2023 and 5.450% Senior Notes due 2043 (collectively, the “ Securities ”);

WHEREAS Section 4.11 of the Indenture provides that under certain circumstances the Company is required to cause the New Guarantor to execute and deliver to the Trustee a supplemental indenture pursuant to which the New Guarantor shall unconditionally guarantee all the Company’s obligations under the Securities pursuant to a Subsidiary Guarantee on the terms and conditions set forth herein; and

WHEREAS pursuant to Section 9.01 of the Indenture, the Trustee and the Company are authorized to execute and deliver this Supplemental Indenture;

NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the New Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the holders of the Securities as follows (capitalized terms used herein and not defined shall have the meaning ascribed to them in the Indenture):

1. Agreement to Guarantee. The New Guarantor hereby agrees to unconditionally guarantee the Company’s obligations under the Securities on the terms and subject to the conditions set forth in Article 13 of the Indenture and to be bound by all other applicable provisions of the Indenture and the Securities.

2. Ratification of Indenture; Supplemental Indentures Part of Indenture.  Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.

3. Governing Law. This Supplemental Indenture shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State.


4. Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

5. Counterparts. This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

6. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction thereof.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.

 

FREEPORT-MCMORAN OIL & GAS LLC
By:   

/s/ Kathleen L. Quirk

  Name:    Kathleen L. Quirk
  Title:   Executive Vice President & Treasurer
FREEPORT-MCMORAN COPPER & GOLD
    INC.
By:  

/s/ Kathleen L. Quirk

  Name:   /s/ Kathleen L. Quirk
  Title:   Executive Vice President, Chief Financial Officer & Treasurer
U.S. BANK NATIONAL ASSOCIATION, as     Trustee
By:  

/s/ Mauri J. Cowen

  Name:   Mauri J. Cowen
  Title:   Vice President

 

3

Exhibit 4.4

 

 

 

MCMORAN EXPLORATION CO.,

Company,

FREEPORT-MCMORAN COPPER & GOLD INC.,

Parent Guarantor,

and

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

Trustee

SECOND SUPPLEMENTAL INDENTURE

Dated as of June 3, 2013

 

 

 


T ABLE OF C ONTENTS

 

           Page  
ARTICLE I   

        R EPRESENTATIONS OF THE C OMPANY AND THE P ARENT G UARANTOR

     2       

Section 1.01

 

Good Standing

     3   

Section 1.02

 

Authorization

     3   

Section 1.03

 

No Default

     3   

Section 1.04

 

Additional Indebtedness

     3   

Section 1.05

 

Without Consent of Holders

     3   
ARTICLE II   

        P ARENT G UARANTEE

     3       

Section 2.01

 

The Parent Guarantee

     3   

Section 2.02

 

Parent Guarantee Unconditional

     3   

Section 2.03

 

Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances

     4   

Section 2.04

 

Waiver by the Parent Guarantor

     4   

Section 2.05

 

Subrogation

     4   

Section 2.06

 

Stay of Acceleration

     5   

Section 2.07

 

Notation of Parent Guarantee Not Required

     5   

Section 2.08

 

Release of Parent Guarantor

     5   

Section 2.09

 

Benefits Acknowledged

     5   
ARTICLE III   

        A MENDMENT OF I NDENTURE

     5       

Section 3.01

 

Defined Terms

     5   

Section 3.02

 

Amendment of Section 3.2 of the Indenture

     5   

Section 3.03

 

Amendment of Section 6.1 of the Indenture

     6   

Section 3.04

 

General References

     7   

Section 3.05

 

Effectiveness of Second Supplemental Indenture

     7   

Section 3.06

 

Indenture Remains in Full Force and Effect

     7   

Section 3.07

 

Ratification of Indenture; Supplemental Indenture Part of Indenture

     7   

Section 3.08

 

Supplemental Indenture Controls

     7   

Section 3.09

 

No Recourse Against Others

     7   

Section 3.10

 

Notices and Demands

     7   

Section 3.11

 

Benefits of Supplemental Indenture

     8   

Section 3.12

 

Successors and Assigns

     8   

Section 3.13

 

Severability

     8   

Section 3.14

 

Governing Law

     8   

Section 3.15

 

Counterparts

     8   

Section 3.16

 

Headings

     8   

Section 3.17

 

Trustee Disclaimer

     8   

Section 3.18

 

Obligations Under Indenture

     9   

 

i


SECOND SUPPLEMENTAL INDENTURE, dated as of June 3, 2013 (this “ Second Supplemental Indenture ”), by and among MCMORAN EXPLORATION CO., a Delaware corporation (the “ Company ”), FREEPORT-MCMORAN COPPER & GOLD INC., a Delaware corporation (the “ Parent Guarantor ”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, as successor to The Bank of New York (the “ Predecessor Trustee ”) as trustee under the Indenture referred to below (in such capacity, the “ Trustee ”). All capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Indenture (as defined below).

RECITALS

WHEREAS, the Company and the Predecessor Trustee have heretofore executed and delivered an Indenture, dated as of November 14, 2007 (the “ Base Indenture ”), as supplemented by a First Supplemental Indenture, dated as of November 14, 2007, among the Company, the subsidiary guarantors party thereto (the “ Subsidiary Guarantors ”) and the Predecessor Trustee (the “ First Supplemental Indenture ”) and, together with the Base Indenture (as amended, supplemented or otherwise modified from time to time, including without limitation pursuant to this Second Supplemental Indenture, the “ Indenture ”), providing for the issuance of 11.875% Senior Notes due 2014 of the Company (the “ Notes ”);

WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of December 5, 2012 (as amended, supplemented or otherwise modified to the date hereof, the “ Merger Agreement ”), by and among the Company, the Parent Guarantor and INAVN Corp., a Delaware corporation (the “ Merger Sub ), the Company will be merged with and into the Merger Sub, with the Company continuing as the surviving company and a direct wholly owned subsidiary of the Parent Guarantor (the “ Merger ” and the time at which the Merger becomes effective in accordance with Section 1.3 of the Merger Agreement, the “ Merger Effective Time ”);

WHEREAS, Section 4.1 of the Indenture provides, among other things, that the Company may merge into any other Person if the Person surviving any such merger is a corporation organized or existing under the laws of any state of the United States and certain other conditions are complied with;

WHEREAS, Section 10.2 of the Indenture provides, among other things, that each Subsidiary Guarantor will be released and relieved of any obligations under its Subsidiary Guaranty and the Indenture at such time as such Subsidiary Guarantor is released as a guarantor under the Senior Secured Credit Agreement;

WHEREAS, in connection with the Merger, the Parent Guarantor has repaid the debt outstanding under the Senior Secured Credit Agreement, and as of the time of such repayment, each Subsidiary Guarantor therefore was automatically released and relieved of any obligations under its respective Subsidiary Guarantee and the Indenture pursuant to Section 10.2 of the Indenture;


WHEREAS, Sections 9.1(4) and 9.1(7) of the Indenture provide, among other things, that, without the consent of any Noteholder, the Company and the Trustee may amend or supplement the Indenture (i) to add Guarantees with respect to the Notes and (ii) to make any change to any provision of the Indenture that does not adversely affect the legal rights of any Noteholder in any material respect; and

WHEREAS, Section 3.2 of the Indenture provides, among other things, that, if the Company is no longer subject to the periodic reporting requirements of the Exchange Act for any reason, the Company will nevertheless make available to the Trustee and the Holders of the Notes the business and financial information required in the annual reports, quarterly reports and current reports specified in Sections 13 and 15(d) of the Exchange Act;

WHEREAS, in connection with the Merger, the Company will cease to be a reporting company under the Exchange Act and will cease to be subject to the periodic reporting requirements of the Exchange Act;

WHEREAS, as of the Merger Effective Time, the Parent Guarantor desires to (i) fully and unconditionally guarantee all payment obligations of the Company with respect to the Notes on the terms set forth herein and (ii) assume the reporting obligations set forth in Section 3.2 of the Indenture in lieu of the Company for so long as such guarantee is in effect;

WHEREAS, the amendments contained herein do not adversely affect the legal rights of any Noteholder in any material respect;

WHEREAS, the Company has requested that the Trustee execute and deliver this Second Supplemental Indenture pursuant to Section 9.1 of the Indenture, and all conditions precedent and requirements necessary to make this Second Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been complied with, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Parent Guarantor, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

ARTICLE I

Representations of the Company and the Parent Guarantor

Each of the Company and the Parent Guarantor represents and warrants to the Trustee, with respect to itself and in each case only to the extent applicable, as follows:

 

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Section 1.01 Good Standing . It is a corporation duly formed or organized, validly existing and, to the extent applicable, in good standing under the laws of its respective state of incorporation as set forth in the preamble hereto.

Section 1.02 Authorization. The execution, delivery and performance by it of this Second Supplemental Indenture have been authorized and approved by all necessary action on its part.

Section 1.03 No Default . Immediately after the Merger, no Default or Event of Default will exist.

Section 1.04 Additional Indebtedness . Immediately after the Merger, the Company will be able to Incur at least an additional $1.00 of Indebtedness.

Section 1.05 Without Consent of Holders. This Second Supplemental Indenture is executed and delivered pursuant to Sections 9.1(4) and 9.1(7) of the Indenture and does not require the consent of any Noteholder.

ARTICLE II

Parent Guarantee

The Parent Guarantor hereby agrees that:

Section 2.01 The Parent Guarantee. Subject to the provisions of this Article 2, the Parent Guarantor hereby agrees, as of the Merger Effective Time, to fully and unconditionally guarantee the full and punctual payment (whether at maturity, upon acceleration, upon redemption or otherwise) of the principal of (and premium, if any) and interest on, and all other amounts payable under, each series of the Notes, and the full and punctual payment of all other amounts payable by the Company to the Holders of each series of the Notes and to the Trustee under the Indenture (the “ Parent Guarantee ”). Upon the failure by the Company to pay punctually any such amount, the Parent Guarantor shall forthwith on demand pay the amount not so paid at the place and in the manner specified in the Indenture.

Section 2.02 Parent Guarantee Unconditional . The Parent Guarantee shall be unconditional and absolute and, without limiting the generality of the foregoing, shall not be released, discharged or otherwise affected by:

(a) any extension, renewal, settlement, compromise, waiver or release in respect of any obligation of the Company under the Indenture or any series of the Notes, by operation of law or otherwise;

(b) any modification or amendment of or supplement to the Indenture or any series of the Notes (other than a modification, amendment or supplement effected in accordance with the terms of the Indenture which expressly releases, discharges or otherwise affects the Parent Guarantee);

 

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(c) any change in the corporate existence, structure or ownership of the Company, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company or its assets or any resulting release or discharge of any obligation of the Company contained in the Indenture or any series of the Notes;

(d) the existence of any claim, set-off or other right that the Parent Guarantor may have at any time against the Company, the Trustee or any other Person, whether in connection with the Indenture or an unrelated transaction, provided that nothing herein prevents the assertion of any such claim by separate suit or compulsory counterclaim;

(e) any invalidity, irregularity or unenforceability relating to, or against the Company for any reason of, the Indenture or any series of the Notes, or any provision of applicable law or regulation purporting to prohibit the payment by the Company of the principal of or interest on any series of the Notes or any other amount payable by the Company under the Indenture; or

(f) any other act or omission to act or delay of any kind by the Company, the Trustee or any other Person or any other circumstance whatsoever which might, but for the provisions of this Section 2.02, constitute a legal or equitable discharge of or defense to the Parent Guarantor’s obligations hereunder (other than an act contemplated by the parenthetical in Section 1.01(b) above).

Section 2.03 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances . Subject to Section 2.08, the Parent Guarantee shall remain in full force and effect until the principal of (and premium, if any) and interest on, and all other amounts payable under, each series of the Notes, and all other amounts payable by the Company to the Holders of each series of the Notes under the Indenture have been paid in full. If at any time any payment of the principal of (or premium, if any) or interest on, or any other amounts payable under, any series of the Notes or any other amount payable by the Company to the Holders of any series of the Notes under the Indenture is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Company or otherwise, the Parent Guarantee with respect to such payment shall be reinstated as though such payment had been due but not made at such time.

Section 2.04 Waiver by the Parent Guarantor . The Parent Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Company or any other Person.

Section 2.05 Subrogation . The Parent Guarantor agrees that, until the indefeasible payment and satisfaction in full in cash of all applicable obligations under the Notes, the Parent Guarantee and the Indenture with respect to the Notes, the Parent Guarantor shall waive any claim and shall not exercise any right or remedy, direct or indirect, arising by reason of any performance by it of the Parent Guarantee, whether by subrogation or otherwise, against the Company.

 

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Section 2.06 Stay of Acceleration . If acceleration of the time for payment of any amount payable by the Company to the Holders of any series of Notes under the Indenture or the Notes is stayed upon the insolvency, bankruptcy or reorganization of the Company, all such amounts otherwise subject to acceleration under the terms of the Indenture are nonetheless payable by the Parent Guarantor hereunder forthwith on demand by the Trustee or the Holders of such series of outstanding Notes.

Section 2.07 Notation of Parent Guarantee Not Required . Section 2.08 The Parent Guarantor acknowledges that the Parent Guarantee shall remain in full force and effect notwithstanding the absence on any Note of a notation relating to the Parent Guarantee.

Section 2.08 Release of Parent Guarantor . Section 2.09 The Parent Guarantor’s obligations under the Parent Guarantee shall terminate upon (a) satisfaction and discharge of the Indenture pursuant to Article VIII of the Indenture or (b) legal defeasance or covenant defeasance pursuant to Article VIII of the Indenture.

Upon delivery by the Company to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the foregoing effect, the Trustee shall execute any documents reasonably required in order to evidence the release of the Parent Guarantor from its obligations under the Parent Guarantee.

Section 2.09 Benefits Acknowledged . The Parent Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and that the guarantee and waivers made by the Parent Guarantor pursuant to the Parent Guarantee are knowingly made in contemplation of such benefits.

ARTICLE III

Amendment of Indenture

With respect to the Notes, the Indenture is hereby amended as set forth below in this Article 3; provided, however , that each such amendment shall apply only to the Notes and not to any other series of Securities issued under the Indenture.

Section 3.01 Defined Terms Section 3.02. Subject to the limitations set forth in the preamble to Article 3 of this Second Supplemental Indenture, Section 1.2 of the Indenture is hereby amended by inserting each of the following defined terms in its appropriate alphabetical position:

Parent Guarantee ” has the meaning given to such term in Section 2.01 to the Second Supplemental Indenture hereto, dated as of June 3, 2013.

Parent Guarantor ” means Freeport-McMoRan Copper & Gold Inc., but only for so long as Freeport-McMoRan Copper & Gold Inc. remains obligated under the Parent Guarantee pursuant to the terms of the Second Supplemental Indenture hereto, dated as of June 3, 2013.

Section 3.02 Amendment of Section 3.2 of the Indenture . Subject to the limitations set forth in the preamble to Article 3 of this Second Supplemental Indenture, Section 3.2 of the Indenture is hereby amended and restated to read in its entirety as follows:

 

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“Section 3.2 SEC Reports . Whether or not the Parent Guarantor is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Parent Guarantor will make available to the Trustee and the Holders of the Notes the business and financial information required in the annual, quarterly and current reports specified in Sections 13 and 15(d) of the Exchange Act which the Parent Guarantor would be required to file if the Parent Guarantor were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act. The Parent Guarantor will make such information available to the Trustee and the Holders of the Notes no later than the date on which the Parent Guarantor would have been required to file such reports with the SEC if the Parent Guarantor were subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act.

If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by the preceding paragraph shall include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes to the financial statements and in Management’s Discussion and Analysis of Results of Operations and Financial Condition, of the financial condition and results of operations of the Company and its Restricted Subsidiaries.

For purposes of this Section 3.2 , the Parent Guarantor will be deemed to have furnished the reports to the Trustee and the Holders of the Notes as required by this Section 3.2 if they have filed such reports with the SEC via the EDGAR filing system and such reports are publicly available.

Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).”

Section 3.03 Amendment of Section 6.1 of the Indenture. Subject to the limitations set forth in the preamble to Article 3 of this Second Supplemental Indenture, Section 6.1(4) of the Indenture is hereby amended and restated to read in its entirety as follows:

“(4) failure by (a) the Parent Guarantor to comply for 30 days after notice with any of its obligations under Section 3.2 or (b) the Company to comply for 30 days after notice with any of its obligations under Sections 3.3 through 3.12 , inclusive, and 3.16 (in each case, other than a failure to purchase Notes which will constitute an Event of Default under clause (2) above and other than a failure to comply with Article IV which is covered by clause (3));”

 

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Section 3.04 General References. Unless otherwise specified or unless the context otherwise requires, (i) all references in this Second Supplemental Indenture to Articles and Sections refer to the corresponding Articles and Sections of this Second Supplemental Indenture and (ii) the terms “ herein ,” “ hereof ,” “ hereunder ” and any other word of similar import refers to this Second Supplemental Indenture.

Section 3.05 Effectiveness of Second Supplemental Indenture. Notwithstanding anything to the contrary elsewhere herein, this Second Supplemental Indenture shall become effective only as of the Merger Effective Time. Promptly after the Merger Effective Time, the Company shall provide notice thereof to the Trustee. If the Company notifies the Trustee in writing that the Merger Effective Time will not occur, then the provisions hereof shall not become effective. Upon the effectiveness of this Second Supplemental Indenture, the Indenture shall be and be deemed to be modified and amended in accordance herewith and the respective rights, limitations of rights, obligations, duties and immunities under the Indenture of the Trustee, the Company and the Holders affected thereby shall hereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of this Second Supplemental Indenture shall be and be deemed to be part of the terms and conditions of the Indenture for any and all purposes.

Section 3.06 Indenture Remains in Full Force and Effect. Except as amended and supplemented hereby, all provisions in the Indenture shall remain in full force and effect and are in all respects ratified and confirmed.

Section 3.07 Ratification of Indenture; Supplemental Indenture Part of Indenture . Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Second Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

Section 3.08 Supplemental Indenture Controls . If there is any conflict or inconsistency between the Indenture and this Second Supplemental Indenture, the provisions of this Second Supplemental Indenture shall control.

Section 3.09 No Recourse Against Others. No past, present or future director, officer, employee, incorporator or shareholder of the Parent Guarantor or any successor of the Parent Guarantor shall have any liability by reason of his, her or its status as such under or upon any obligation, covenant or agreement of the Parent Guarantor contained in this Second Supplemental Indenture, the Indenture or the Notes, or because of any indebtedness evidenced thereby, all such liability being expressly waived and released by the Holders of the Notes by their acceptance of the Parent Guarantee and as part of the consideration for the making of the Parent Guarantee.

Section 3.10 Notices and Demands. (a) Any notice, demand, direction, request or other document that is required or permitted by any provision of this Second Supplemental Indenture or the Indenture to be given or made by the Trustee or by the Holders of any Notes to or upon the Company shall be given or made in accordance with Section 11.1 of the Indenture.

 

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(a) Any notice, demand, direction, request or other document that is required or permitted by any provision of this Second Supplemental Indenture or the Indenture to be given or made by the Trustee or by the Holders of any Notes to or upon the Parent Guarantor shall be given or made by postage-prepaid, first-class mail addressed (until another address of the Parent Guarantor is filed by the Parent Guarantor with the Trustee) to Freeport-McMoRan Copper & Gold Inc., 333 North Central Avenue, Phoenix, Arizona 85004-2189, Attention: FCX Treasurer.

(b) Any notice, demand, direction, request or other document that is required or permitted by any provision of this Second Supplemental Indenture or the Indenture to be given or made by the Parent Guarantor to or upon the Trustee or the Holders of any Notes shall be given or made in accordance with Section 11.1 of the Indenture.

Section 3.11 Benefits of Supplemental Indenture. Nothing in this Second Supplemental Indenture, express or implied, shall give or be construed to give to any Person, other than the parties hereto, any Agent, any Registrar, any successors to the foregoing hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under the Indenture or this Second Supplemental Indenture.

Section 3.12 Successors and Assigns. All covenants and agreements in this Second Supplemental Indenture made by the Company, the Parent Guarantor or the Trustee shall bind their respective successors and assigns, whether so expressed or not.

Section 3.13 Severability. In case any provision in this Second Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.

Section 3.14 Governing Law. This Second Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.

Section 3.15 Counterparts. The parties hereto may sign one or more copies of this Second Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.

Section 3.16 Headings. The headings of the Articles and the Sections in this Second Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.

Section 3.17 Trustee Disclaimer . The Trustee accepts the amendments of the Indenture effected by this Second Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and

 

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limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company and the Parent Guarantor, as applicable, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture.

Section 3.18 Obligations Under Indenture. For the avoidance of doubt, the Parent Guarantor shall not be bound by any obligations or covenants under the Indenture except as set forth in this Second Supplemental Indenture or as otherwise required by the Trust Indenture Act.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the day and year first written above.

 

FREEPORT-MCMORAN COPPER &

    GOLD INC.,

    as Parent Guarantor

By:  

/s/ Kathleen L. Quirk

  Name:   Kathleen L. Quirk
  Title:   Executive Vice President, Chief Financial Officer and Treasurer
MCMORAN EXPLORATION CO.
By:  

/s/ Nancy D. Parmelee

  Name:   Nancy D. Parmelee
  Title:   Senior Vice President, Chief Financial Officer and Secretary


THE BANK OF NEW YORK MELLON TRUST
    COMPANY, N.A., as Trustee
By:  

/s/ R. Tamas

  Name:   R. Tamas
  Title:   Vice President

Exhibit 4.5

 

 

 

MCMORAN EXPLORATION CO.

Company

and

U.S. BANK NATIONAL ASSOCIATION

Trustee

FIRST SUPPLEMENTAL INDENTURE

4% CONVERTIBLE SENIOR NOTES DUE 2017

Dated as of June 3, 2013

 

 

 


FIRST SUPPLEMENTAL INDENTURE, dated as of June 3, 2013 (this “ First Supplemental Indenture ”), by and among MCMORAN EXPLORATION CO., a Delaware corporation (the “ Company ”) and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee under the Indenture referred to below (in such capacity, the “ Trustee ”). All capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Indenture (as defined below).

RECITALS

WHEREAS, the Company and the Trustee have heretofore executed and delivered an Indenture, dated as of December 30, 2010 (the “Indenture”), providing for the issuance of 4% Convertible Senior Notes due 2017 of the Company (the “Notes”);

WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of December 5, 2012 (as amended, supplemented or otherwise modified to the date hereof, the “ Merger Agreement ”), by and among the Company, Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (“ FCX ”), and INAVN Corp., a Delaware corporation (the “ Merger Sub ”), the Company will be merged with and into the Merger Sub, with the Company continuing as the surviving company and a direct wholly owned subsidiary of FCX (the “ Merger ” and the time at which the Merger becomes effective in accordance with Section 1.3 of the Merger Agreement, the “ Merger Effective Time ”);

WHEREAS, Section 5.01 of the Indenture provides, among other things, that the Company may merge into any other Person if the Company shall be the continuing corporation and certain other conditions are complied with; and

WHEREAS, the Merger constitutes a Merger Event within the meaning of Section 10.12 of the Indenture;

WHEREAS, Section 9.01 of the Indenture provides, among other things, that the Company and the Trustee may from time to time and at any time enter into an indenture supplemental to the Indenture, without the consent of the Holders, to add or modify any provision which the Company and the Trustee deem necessary or desirable and does not adversely affect the rights of any Holder in any material respect;

WHEREAS, as a result of the Merger, Section 10.12 of the Indenture provides, among other things, that (a) the Notes are now convertible into Reference Property in lieu of Company Common Stock into which the Notes were previously convertible and (b) the Company shall execute and deliver with the Trustee a supplemental indenture providing for the conversion and settlement of the Notes as set forth in the Indenture and providing for adjustments that shall be as nearly equivalent as practicable to the adjustments provided for in Article 10 of the Indenture;

WHEREAS, the Company has requested that the Trustee execute and deliver this First Supplemental Indenture pursuant to Sections 9.01 and 9.06 of the Indenture; and

 

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WHEREAS, all conditions precedent and requirements necessary to make this First Supplemental Indenture a valid and legally binding instrument in accordance with its terms have been complied with, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

Article 1

Effect of Merger

Section 1.01 In accordance with Section 10.12 of the Indenture, on and after the Merger Effective Time, the right to convert each $1,000 principal amount of the Notes into Common Stock will be changed to a right to exchange such Notes into the consideration such Holder would have been entitled to receive under the Merger, by reference to that number of shares of Common Stock equal to the Conversion Rate that such Holder would have owned or been entitled to receive had such Holder converted its Notes immediately prior to the Merger, in accordance with the terms and conditions of the Indenture, including the adjustments pursuant to Section 10.04, and the Notes. Pursuant to the Merger Agreement, the Company’s stockholders are entitled to receive per-share consideration consisting of $14.75 in cash and 1.15 units of a royalty trust (Gulf Coast Ultra Deep Royalty Trust), which will hold a 5 percent overriding royalty interest in future production from twenty specified ultra-deep exploration prospects.

Article 2

Miscellaneous

Section 2.01 General References . Unless otherwise specified or unless the context otherwise requires, (i) all references in this First Supplemental Indenture to Articles and Sections refer to the corresponding Articles and Sections of this First Supplemental Indenture and (ii) the terms “ herein ,” “ hereof ,” “ hereunder ” and any other word of similar import refers to this First Supplemental Indenture.

Section 2.02 Effectiveness of First Supplemental Indenture . Notwithstanding anything to the contrary elsewhere herein, this First Supplemental Indenture shall become effective only as of the Merger Effective Time. Promptly after the Merger Effective Time, the Company shall provide notice thereof to the Trustee. If the Company notifies the Trustee in writing that the Merger Effective Time will not occur, then the provisions hereof shall not become effective. Upon the effectiveness of this First Supplemental Indenture, the Indenture shall be and be deemed to be modified and amended in accordance herewith and the respective rights, limitations of rights, obligations, duties and immunities under the Indenture of the Trustee, the Company and the Holders affected thereby shall hereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of this First Supplemental Indenture shall be and be deemed to be part of the terms and conditions of the Indenture for any and all purposes.

 

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Section 2.03 Indenture Remains in Full Force and Effect . Except as amended and supplemented hereby, all provisions in the Indenture shall remain in full force and effect and are in all respects ratified and confirmed.

Section 2.04 Ratification of Indenture; First Supplemental Indenture Part of Indenture . Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This First Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

Section 2.05 First Supplemental Indenture Controls . If there is any conflict or inconsistency between the Indenture and this First Supplemental Indenture, the provisions of this First Supplemental Indenture shall control.

Section 2.06 Benefits of First Supplemental Indenture . Nothing in this First Supplemental Indenture, express or implied, shall give or be construed to give to any Person, other than the parties hereto, any agent, any registrar, any successors to the foregoing hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under the Indenture or this First Supplemental Indenture.

Section 2.07 Successors and Assigns . All covenants and agreements in this First Supplemental Indenture made by the Company or the Trustee shall bind their respective successors and assigns, whether so expressed or not.

Section 2.08 Severability . In case any provision in this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability; furthermore, no Holder of Notes shall have any claim against any party hereto for any such invalidity, illegality or unenforceability.

Section 2.09 Governing Law . This First Supplemental Indenture, and any claim, controversy or dispute arising under or related to this First Supplemental Indenture, shall be governed by, and construed in accordance with, the laws of the State of New York.

Section 2.10 Counterparts . The parties hereto may sign one or more copies of this First Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.

Section 2.11 Headings . The headings of the Articles and the Sections in this First Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.

Section 2.12 Trustee Disclaimer . The Trustee accepts the amendments of the Indenture effected by this First Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and

 

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responsibilities in the performance of the trust created by the Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture.

[Signature pages to follow.]

 

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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first written above.

 

MCMORAN EXPLORATION CO.
By:  

/s/ Nancy D. Parmelee

  Name:   Nancy D. Parmelee
  Title:  

Senior Vice President,

Chief Financial Officer and Secretary


U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:  

/s/ Mauri J. Cowen

  Name:   Mauri J. Cowen
  Title:   Vice President

Exhibit 4.6

 

 

 

MCMORAN EXPLORATION CO.

Company

and

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

Trustee

FIRST SUPPLEMENTAL INDENTURE

5  1 / 4 % CONVERTIBLE SENIOR NOTES DUE 2013

Dated as of June 3, 2013

 

 

 


FIRST SUPPLEMENTAL INDENTURE, dated as of June 3, 2013 (this “ First Supplemental Indenture ”), by and between MCMORAN EXPLORATION CO., a Delaware corporation (the “ Company ”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association, as trustee under the Indenture referred to below (in such capacity, the “ Trustee ”). All capitalized terms used herein but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Indenture (as defined below).

RECITALS

WHEREAS, the Company and the Trustee have heretofore executed and delivered an Indenture, dated as of September 13, 2012 (the “ Indenture ”), providing for the issuance of 5  1 / 4 % Convertible Senior Notes due 2013 of the Company (the “ Notes ”);

WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of December 5, 2012 (as amended, supplemented or otherwise modified to the date hereof, the “ Merger Agreement ”), by and among the Company, Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the “ FCX ”), and INAVN Corp., a Delaware corporation (the “ Merger Sub ), the Company will be merged with and into the Merger Sub, with the Company continuing as the surviving company and a direct wholly owned subsidiary of FCX (the “ Merger ” and the time at which the Merger becomes effective in accordance with Section 1.3 of the Merger Agreement, the “ Merger Effective Time ”);

WHEREAS, Section 5.01 of the Indenture provides, among other things, that the Company may merge into any other Person if the Company shall be the continuing corporation and certain other conditions are complied with; and

WHEREAS, Section 10.11 of the Indenture is applicable with respect to the Merger;

WHEREAS, as a result of the Merger, Section 10.11 of the Indenture provides, among other things, that (a) the Notes are now convertible the kind and amount of consideration under the Merger Agreement in lieu of Company Common Stock into which the Notes were previously convertible and (b) the Company shall execute and deliver with the Trustee a supplemental indenture providing for the conversion and settlement of the Notes as set forth in the Indenture and providing for adjustments that shall be as nearly equivalent as practicable to the adjustments provided for in Article 10 of the Indenture;

WHEREAS, Section 9.01(h) of the Indenture provides that, without the consent of any Noteholder, the Company and the Trustee may supplement the Indenture to comply with the requirements regarding merger or transfer or assets; and

WHEREAS, the Company has requested that the Trustee execute and deliver this First Supplemental Indenture pursuant to Section 9.01(h) of the Indenture, and all conditions precedent and requirements necessary to make this First Supplemental

 

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Indenture a valid and legally binding instrument in accordance with its terms have been complied with, performed and fulfilled, and the execution and delivery hereof have been in all respects duly authorized.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

ARTICLE I

Effect of Merger

Section 1.01 In accordance with Section 10.11 of the Indenture, on and after the Merger Effective Time, the right to convert the Notes into Common Stock will be changed to a right to exchange such Notes into the consideration such Holder would have been entitled to receive under the Merger, by reference to that number of shares of Common Stock equal to the Conversion Rate that such Holder would have owned or been entitled to receive had such Holder converted its Notes immediately prior to the Merger, in accordance with the terms and conditions of the Indenture and the Notes. Pursuant to the Merger Agreement, the Company’s stockholders are entitled to receive per-share consideration consisting of $14.75 in cash and 1.15 units of a royalty trust (Gulf Coast Ultra Deep Royalty Trust), which will hold a 5 percent overriding royalty interest in future production from twenty specified ultra-deep exploration prospects.

ARTICLE II

Miscellaneous

Section 2.04 General References. Unless otherwise specified or unless the context otherwise requires, (i) all references in this First Supplemental Indenture to Articles and Sections refer to the corresponding Articles and Sections of this First Supplemental Indenture and (ii) the terms “ herein ,” “ hereof ,” “ hereunder ” and any other word of similar import refers to this First Supplemental Indenture.

Section 2.05 Effectiveness of First Supplemental Indenture. Notwithstanding anything to the contrary elsewhere herein, this First Supplemental Indenture shall become effective only as of the Merger Effective Time. Promptly after the Merger Effective Time, the Company shall provide notice thereof to the Trustee. If the Company notifies the Trustee in writing that the Merger Effective Time will not occur, then the provisions hereof shall not become effective. Upon the effectiveness of this First Supplemental Indenture, the Indenture shall be and be deemed to be modified and amended in accordance herewith and the respective rights, limitations of rights, obligations, duties and immunities under the Indenture of the Trustee, the Company and the Holders affected thereby shall hereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of this First Supplemental Indenture shall be and be deemed to be part of the terms and conditions of the Indenture for any and all purposes.

 

3


Section 2.06 Indenture Remains in Full Force and Effect. Except as amended and supplemented hereby, all provisions in the Indenture shall remain in full force and effect and are in all respects ratified and confirmed.

Section 2.07 Ratification of Indenture; Supplemental Indenture Part of Indenture . Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This First Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.

Section 2.08 Supplemental Indenture Controls . If there is any conflict or inconsistency between the Indenture and this First Supplemental Indenture, the provisions of this First Supplemental Indenture shall control.

Section 2.11 Benefits of Supplemental Indenture. Nothing in this First Supplemental Indenture, express or implied, shall give or be construed to give to any Person, other than the parties hereto, any agent, any registrar, any successors to the foregoing hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under the Indenture or this First Supplemental Indenture.

Section 2.12 Successors and Assigns. All agreements in this First Supplemental Indenture made by the Company or the Trustee shall bind their respective successors and assigns, whether so expressed or not.

Section 2.13 Severability. In case any provision in this First Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby and such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability.

Section 2.14 Governing Law. This First Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.

Section 2.15 Counterparts. The parties hereto may sign one or more copies of this First Supplemental Indenture in counterparts, all of which together shall constitute one and the same agreement.

Section 2.16 Headings. The headings of the Articles and the Sections in this First Supplemental Indenture are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.

Section 2.17 Trustee Disclaimer . The Trustee accepts the amendments of the Indenture effected by this First Supplemental Indenture and agrees to execute the trust created by the Indenture as hereby amended, but on the terms and conditions set forth in the Indenture, including the terms and provisions defining and limiting the liabilities and responsibilities of the Trustee, which terms and provisions shall in like manner define and limit its liabilities and responsibilities in the performance of the trust created by the

 

4


Indenture as hereby amended, and without limiting the generality of the foregoing, the Trustee shall not be responsible in any manner whatsoever for or with respect to any of the recitals or statements contained herein, all of which recitals or statements are made solely by the Company, and the Trustee makes no representation with respect to any such matters. Additionally, the Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture.

[ Signature pages to follow. ]

 

5


IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first written above.

 

MCMORAN EXPLORATION CO.
By:  

/s/ Nancy D. Parmelee

  Name:   Nancy D. Parmelee
  Title:   Senior Vice President, Chief Financial Officer and Secretary


THE BANK OF NEW YORK MELLON

    TRUST COMPANY, N.A., as Trustee

By:  

/s/ R. Tamas

  Name:   R. Tamas
  Title:   Vice President

Exhibit 99.1

 

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333 North Central Avenue   ¡   Phoenix, AZ 85004   Financial Contacts:       Media Contact:
  Kathleen L. Quirk    David P. Joint    Eric E. Kinneberg
  (602) 366-8016    (504) 582-4203    (602) 366-7994

Freeport-McMoRan Copper & Gold Inc. Completes

Acquisition of Plains Exploration & Production Company

 

PHOENIX, AZ, and HOUSTON, TX, May 31, 2013 – Freeport-McMoRan Copper & Gold Inc. (NYSE: FCX) today announced that it has completed its acquisition of Plains Exploration & Production Company (NYSE: PXP), adding a high quality portfolio of U.S.-based oil and gas assets to its global mining business.

This approximate $16.3 billion transaction included the assumption of $9.7 billion of PXP debt as of March 31, 2013, the payment of approximately $3.3 billion in cash ($25 per PXP share), the issuance of approximately 91 million shares of FCX common stock (0.6531 shares per PXP share), equivalent to a value of approximately $2.9 billion based on the closing price of FCX’s common stock on May 30, 2013, and the value of the $3 per share PXP special cash dividend paid on May 31, 2013. After giving effect to the transaction, FCX has approximately 1,038 million shares outstanding.

The transaction creates a premier U.S.-based natural resource company with an industry leading global portfolio of mineral assets, significant oil and gas resources and a growing production profile. The addition of a high quality, U.S.-focused oil and gas resource base provides exposure to energy markets with positive fundamentals, strong margins and cash flows, exploration leverage and financially attractive long-term investment opportunities. The portfolio of assets includes established oil production facilities in California, a growing production profile in the onshore Eagle Ford trend in Texas, significant production facilities and growth potential in the Deepwater Gulf of Mexico and large onshore resources in the Haynesville natural gas trend in Louisiana.

As previously reported, FCX’s acquisition of McMoRan Exploration Co. (NYSE: MMR) is expected to close on June 3, 2013, subject to MMR shareholder approval at the special meeting set for June 3, 2013. MMR is an industry leader in the emerging shallow water, ultra-deep natural gas trend with sizeable potential, located offshore in the shallow waters of the Gulf of Mexico and onshore in South Louisiana. The MMR portfolio is expected to provide a large, long-term and low cost source of natural gas production.

EXCHANGE OF PXP COMMON SHARES

Effective as of the close of trading on May 30, 2013, PXP’s common stock (NYSE: PXP) will no longer trade. As previously reported, based on the May 31, 2013 closing date and pursuant to the proration formula set forth in the merger agreement:

 

   

PXP stockholders that elected to receive FCX common stock will receive shares of FCX common stock at an exchange ratio of approximately 1.4302 shares of FCX common stock for each share of PXP common stock.

 

   

PXP stockholders that elected to receive cash will receive $46.01 in cash for each share of PXP common stock.

 

   

PXP stockholders who did not make a valid election or did not deliver a valid election form prior to the election deadline will receive approximately 99.5 percent of their merger consideration in cash equal to $46.01 for each share of PXP common stock and the remainder of their merger consideration in shares of FCX common stock at an exchange ratio of approximately 1.4302 shares of FCX common stock for each share of PXP common stock.

 

 

 

        Freeport-McMoRan Copper & Gold   1        


LOGO

No fractional shares of FCX common stock will be issued, and PXP stockholders will receive cash in lieu of fractional shares.

PXP’s registered shareholders will receive information from Computershare Trust Company, N.A., the exchange agent for the merger, regarding the exchange of their PXP common shares. PXP’s shareholders holding through a broker or bank should receive information regarding the exchange of their PXP common shares from the broker or bank.

FCX is a premier U.S.-based natural resource company with an industry leading global portfolio of mineral assets, significant oil and gas resources and a growing production profile. FCX is the world’s largest publicly traded copper producer.

FCX’s portfolio of 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 and El Abra operations in South America; the Tenke Fungurume minerals district in the Democratic Republic of Congo; and significant oil and natural gas assets in North America, including reserves in the Deepwater Gulf of Mexico, onshore and offshore California and in the Eagle Ford and Haynesville shale plays. Additional information about FCX is available on FCX’s website at www.fcx.com.

 

 

Cautionary Statement Regarding Forward Looking Statements: This press release contains forward-looking statements concerning the proposed MMR transaction, the expected timetable for completing the proposed MMR transaction, and other matters. Forward-looking statements are all statements other than statements of historical facts. The words “anticipates,” “may,” “can,” “plans,” “believes,” “estimates,” “expects,” “projects,” “intends,” “likely,” “will,” “should,” “to be,” and any similar expressions or other words of similar meaning are intended to identify those assertions as forward-looking statements. It is uncertain whether the events anticipated will transpire, or if they do occur what impact they will have on the results of operations and financial condition of FCX, or of the combined company. These forward-looking statements involve significant risks and uncertainties that could cause actual results to differ materially from those anticipated, including but not limited to the ability of the FCX to satisfy the conditions precedent and consummate the proposed MMR transaction, the timing of consummation of the proposed MMR transaction, the ability of FCX to integrate the acquired PXP and MMR operations, the ability to implement the anticipated business plans following closing and achieve anticipated benefits and savings, changes in commodity prices and the ability to realize opportunities for growth. Other important economic, political, regulatory, legal, technological, competitive and other uncertainties are identified in the documents filed with the Securities and Exchange Commission by FCX from time to time, including its Annual Report on Form 10-K, Quarterly Report on Form 10-Q, and Current Reports on Form 8-K. The forward-looking statements including in this press release are made only as of the date hereof. FCX does not undertake any obligation to update the forward-looking statements included in this press release to reflect subsequent events or circumstances.

Additional Information about the Proposed Transaction and Where to Find It: In connection with the proposed transaction, FCX and the royalty trust formed in connection with the transaction have filed with the SEC a registration statement on Form S-4 that includes a proxy statement of McMoRan that also constitutes a prospectus of FCX and the royalty trust. FCX, the royalty trust and McMoRan also plan to file other relevant documents with the SEC regarding the proposed transaction. INVESTORS ARE URGED TO READ THE PROXY STATEMENT/PROSPECTUS AND OTHER RELEVANT DOCUMENTS FILED WITH THE SEC BECAUSE THEY CONTAIN IMPORTANT INFORMATION. You may obtain a free copy of the definitive proxy statement/prospectus and other relevant documents filed by FCX, the royalty trust and McMoRan with the SEC at the SEC’s website at www.sec.gov. You may also obtain these documents by contacting FCX’s Investor Relations department at (602) 366-8400, or via e-mail at ir@fmi.com; or by contacting McMoRan’s Investor Relations department at (504) 582-4000, or via email at ir@fmi.com.

FCX and McMoRan and their respective directors and executive officers and other members of management and employees may be deemed to be participants in the solicitation of proxies in respect of the proposed transaction. Information about FCX’s directors and executive officers is available in FCX’s 2012 Annual Report on Form 10-K, filed with the SEC on February 22, 2013, as amended on April 23, 2013. Information about McMoRan’s directors and executive officers is available in McMoRan’s 2012 Annual Report on Form 10-K, filed with the SEC on February 22, 2013, as amended on April 26, 2013. Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, is contained in the definitive proxy statement/prospectus and other relevant materials which may be filed with the SEC regarding the merger. Investors should read the definitive proxy statement/prospectus carefully before making any voting or investment decisions. You may obtain free copies of these documents from FCX or McMoRan using the sources indicated above.

This document shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the U.S. Securities Act of 1933, as amended.

# # #

 

 

        Freeport-McMoRan Copper & Gold   2        

Exhibit 99.2

 

 

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333 North Central Avenue   ¡   Phoenix, AZ 85004   Financial Contacts:       Media Contact:
  Kathleen L. Quirk    David P. Joint    Eric E. Kinneberg
  (602) 366-8016    (504) 582-4203    (602) 366-7994

Freeport-McMoRan Copper & Gold Inc. Announces

Appointment of Three New Members to its Board of Directors

 

PHOENIX, AZ, May 31, 2013 – Freeport-McMoRan Copper & Gold Inc. (NYSE: FCX) announced today the appointment of three former directors of Plains Exploration & Production Company to its Board of Directors: James C. Flores, Alan R. Buckwalter, III and Thomas A. Fry, III.

James C. Flores , 53, is Vice Chairman of the Board of FCX and Chief Executive Officer and President of Freeport-McMoRan Oil & Gas LLC, a wholly owned subsidiary of FCX. Mr. Flores is a member of the newly formed Office of the Chairman along with James R. Moffett, Chairman of the Board, and Richard C. Adkerson, Vice Chairman, President and Chief Executive Officer of FCX. Mr. Flores is the former Chairman of the Board, President and Chief Executive Officer of Plains Exploration & Production Company (NYSE: PXP). Mr. Flores has over 25 years of experience in the oil and gas business, including serving as Chairman and CEO of PXP since PXP’s inception in 2002, and President since 2004. He also served as Chairman of the Board of Plains Resources Inc. (now owned by Vulcan Energy Corporation) from 2001 to 2004. He holds a B.S. in Petroleum Land Management and a B.S. in Corporate Finance from Louisiana State University. Mr. Flores is a director of Vulcan Energy Corporation and McMoRan Exploration Co.

Alan R. Buckwalter, III , 66, is the retired Chairman of JPMorgan Chase Bank, South Region, a position he held from 1998 to 2003. From 1990 to 1998, he was President of Texas Commerce Bank—Houston, the predecessor entity of JPMorgan Chase Bank. Mr. Buckwalter served as a member of the PXP board of directors since March 2003. He holds a B.A. degree in Political Science and History from Fairleigh Dickinson University. Mr. Buckwalter is a director of Service Corporation International, the Texas Medical Center, the Greater Houston Area Red Cross and the Houston chapter of the National Association of Corporate Directors.

Thomas A. Fry, III , 68, is the retired President of National Ocean Industries Association (NOIA), a position he held from 2000 to 2010. Before joining NOIA, Mr. Fry served as the Director of the Department of Interior’s Bureau of Land Management and has also served as the Director of the Minerals Management Service. Mr. Fry served as a member of the PXP board of directors since November 2007. He holds a B.S. in Political Science from Trinity University and a Juris Doctorate degree from Southern Methodist University Law School.

FCX’s Board of Directors is now comprised of 15 members, including 11 independent directors, who possess a diverse range of perspectives and experience in the mining and oil and gas industries, geology, business, finance, economics, accounting and public affairs.

“We are pleased to welcome Jim Flores, Alan Buckwalter and Thomas Fry to the FCX Board of Directors,” said James R. Moffett, Chairman of the Board, and Richard C. Adkerson, Vice Chairman, President and Chief Executive Officer of FCX. “We look forward to their guidance and counsel as we combine the businesses of PXP and FCX.”

 

 

        Freeport-McMoRan Copper & Gold   1        


LOGO

FCX is a premier U.S.-based natural resource company with an industry leading global portfolio of mineral assets, significant oil and gas resources and a growing production profile. FCX is the world’s largest publicly traded copper producer.

FCX’s portfolio of 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 and El Abra operations in South America; the Tenke Fungurume minerals district in the Democratic Republic of Congo; and significant oil and natural gas assets in North America, including reserves in the Deepwater Gulf of Mexico, onshore and offshore California and in the Eagle Ford and Haynesville shale plays. Additional information about FCX is available on FCX’s website at www.fcx.com.

# # #

 

 

        Freeport-McMoRan Copper & Gold   2        

Exhibit 99.3

 

 

LOGO

 

333 North Central Avenue   ¡   Phoenix, AZ 85004   Financial Contacts:       Media Contact:
  Kathleen L. Quirk    David P. Joint    Eric E. Kinneberg
  (602) 366-8016    (504) 582-4203    (602) 366-7994

Freeport-McMoRan Copper & Gold Inc. Declares

$1.00 per Share Supplemental Common Stock Dividend

 

PHOENIX, AZ, May 31, 2013 – Freeport-McMoRan Copper & Gold Inc. (NYSE: FCX) announced today that its Board of Directors has declared a supplemental common stock dividend of $1.00 per share to be paid on July 1, 2013 to shareholders of record as of June 14, 2013. The supplemental dividend to be paid in July is in addition to FCX’s regular quarterly common stock dividend of $0.3125 per share.

Based on approximately 1,038 million common shares outstanding, the supplemental dividend payment will approximate $1.0 billion. When paid, this supplemental dividend will be the eleventh supplemental dividend paid by FCX since 2004.

FCX is a premier U.S.-based natural resource company with an industry leading global portfolio of mineral assets, significant oil and gas resources and a growing production profile. FCX is the world’s largest publicly traded copper producer.

FCX’s portfolio of 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 and El Abra operations in South America; the Tenke Fungurume minerals district in the Democratic Republic of Congo; and significant oil and natural gas assets in North America, including reserves in the Deepwater Gulf of Mexico, onshore and offshore California and in the Eagle Ford and Haynesville shale plays. Additional information about FCX is available on FCX’s website at www.fcx.com.

Cautionary Statement: This press release contains forward-looking statements in which FCX discusses factors it believes may affect its potential future performance. Forward-looking statements are all statements other than historical facts, such as statements regarding timing of dividend payments. The declaration of dividends is at the discretion of FCX’s Board of Directors and will depend on FCX’s financial results, cash requirements, future prospects, and other factors deemed relevant by the Board of Directors. In addition, important factors that might cause actual results to differ materially from results anticipated by forward-looking statements include factors described in FCX’s Annual Report on Form 10-K for the year ended December 31, 2012, filed with the Securities and Exchange Commission (SEC) on February 22, 2013, as amended on April 23, 2013, and in the other documents filed with the SEC from time to time.

# # #

 

 

        Freeport-McMoRan Copper & Gold   1        

Exhibit 99.4

 

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333 North Central Avenue    ¡    Phoenix, AZ 85004   Financial Contacts:       Media Contact:
  Kathleen L. Quirk    David P. Joint    Eric E. Kinneberg
  (602) 366-8016    (504) 582-4203    (602) 366-7994

Freeport-McMoRan Copper & Gold Inc.

and McMoRan Exploration Co. Announce

MMR Shareholders Approve Acquisition

 

PHOENIX, AZ, and NEW ORLEANS, LA, June 3, 2013 – Freeport-McMoRan Copper & Gold Inc. (NYSE: FCX) and McMoRan Exploration Co. (NYSE: MMR) announced that the shareholders of MMR approved FCX’s acquisition of MMR at a special meeting held today. A majority of the outstanding shares, excluding shares held by interested parties, approved the transaction. The parties expect that the acquisition will close promptly.

EXCHANGE OF MMR COMMON SHARES & IMPACT ON HOLDERS OF MMR CONVERTIBLE SECURITIES

Assuming prompt consummation of the merger, effective as of the close of trading today, MMR’s common stock (NYSE: MMR) will no longer trade. Pursuant to the merger agreement, MMR stockholders are entitled to receive per-share consideration consisting of $14.75 in cash (totaling $2.2 billion for the shares not already owned by FCX) and 1.15 units of the Gulf Coast Ultra Deep Royalty Trust, which will hold a 5 percent overriding royalty interest in future production from 20 specified ultra-deep exploration prospects. The units of the Gulf Coast Ultra Deep Royalty Trust are expected to trade on the OTCQX.

MMR’s registered shareholders will receive information from Computershare Trust Company, N.A., the exchange agent for the merger, regarding the exchange of their MMR common shares. MMR’s shareholders holding through a broker or bank should receive information regarding the exchange of their MMR common shares from the broker or bank.

The consummation of the merger, which is expected to close later today (“Effective Date”), will constitute a “fundamental change” pursuant to the certificates of designation for MMR’s outstanding 8.0% Preferred Stock and the 5.75% Preferred Stock, and a “change of control” pursuant to the indentures for the 5.25% Notes and the 4% Notes. As a result, put rights and enhanced “Make-Whole” conversion rates may apply as outlined in the following summary:

 

MMR

Convertible

Securities

 

Current

Conversion Rate

 

Put Rights

 

Make-Whole

Conversion Rate (2)

 

Make-Whole

Window Period

8% Preferred

(per share)

  146.1454 shares of common stock   N/A   148.3540 shares of common stock  

June 3, 2013 through

July 9, 2013

5.75% Preferred

(per share)

 

62.5 shares of

common stock

  N/A   68.3881 shares of common stock  

June 3, 2013 through

July 9, 2013

5.25% Notes

(per $1,000)

  60.3318 shares of common stock   Yes (1)   N/A   N/A

4% Notes

(per $1,000)

 

62.5 shares of

common stock

  Yes (1)   70.9080 shares of common stock  

June 3, 2013 through

July 18, 2013

 

(1) Note holders can put the notes to MMR at par plus accrued and unpaid interest. MMR expects to deliver a related notice providing for a change of control purchase date of July 19, 2013 for those holders electing to put their notes.
(2) The conversion rate will be the current conversion rate plus any adjustment provided for in the Make-Whole tables in the applicable certificates of designations and indenture.

 

        Freeport-McMoRan Copper & Gold   1        


LOGO

ABOUT FREEPORT-MCMORAN COPPER & GOLD INC.

FCX is a premier U.S.-based natural resource company with an industry leading global portfolio of mineral assets, significant oil and gas resources and a growing production profile. FCX is the world’s largest publicly traded copper producer.

FCX’s portfolio of 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 mineral districts in North America and the Cerro Verde and El Abra operations in South America; the Tenke Fungurume minerals district in the Democratic Republic of Congo; and significant oil and natural gas assets in North America, including reserves in the Deepwater Gulf of Mexico, onshore and offshore California and in the Eagle Ford and Haynesville shale plays. Additional information about FCX is available on FCX’s website at www.fcx.com .

ABOUT McMoRan EXPLORATION CO.

McMoRan Exploration Co. is an independent public company engaged in the exploration, development and production of natural gas and oil in the shallow waters of the Gulf of Mexico Shelf and onshore in the Gulf Coast area. Additional information about MMR is available on its internet website www.mcmoran.com.

 

 

Cautionary Statement Regarding Forward Looking Statements: This press release contains forward-looking statements concerning the proposed transaction, the expected timetable for completing the proposed transaction, and other matters. Forward-looking statements are all statements other than statements of historical facts. The words “anticipates,” “may,” “can,” “plans,” “believes,” “estimates,” “expects,” “projects,” “intends,” “likely,” “will,” “should,” “to be,” and any similar expressions or other words of similar meaning are intended to identify those assertions as forward-looking statements. It is uncertain whether the events anticipated will transpire, or if they do occur what impact they will have on the results of operations and financial condition of FCX, MMR or of the combined company. These forward-looking statements involve significant risks and uncertainties that could cause actual results to differ materially from those anticipated, including but not limited to the ability of the parties to satisfy the conditions precedent and consummate the proposed transaction, the timing of consummation of the proposed transaction, the ability of FCX to integrate the acquired operations, the ability to implement the anticipated business plans following closing and achieve anticipated benefits and savings, and the ability to realize opportunities for growth. Other important economic, political, regulatory, legal, technological, competitive and other uncertainties are identified in the documents filed with the Securities and Exchange Commission by FCX and MMR from time to time, including their respective Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K. The forward-looking statements including in this press release are made only as of the date hereof. Neither FCX nor MMR undertakes any obligation to update the forward-looking statements included in this press release to reflect subsequent events or circumstances.

# # #

 

        Freeport-McMoRan Copper & Gold   2        

Exhibit 99.5

 

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333 North Central Avenue    ¡    Phoenix, AZ 85004    Financial Contacts:       Media Contact:
   Kathleen L. Quirk    David P. Joint    Eric E. Kinneberg
   (602) 366-8016    (504) 582-4203    (602) 366-7994

Freeport-McMoRan Copper & Gold Inc.

Completes Oil & Gas Transactions

Creating a Premier U.S. Based Natural Resource Company

 

PHOENIX, AZ, and NEW ORLEANS, LA, June 3, 2013 – Freeport-McMoRan Copper & Gold Inc. (NYSE: FCX) today announced that it has completed the final step of its three-way combination with Plains Exploration & Production Company (NYSE: PXP) and McMoRan Exploration Co. (NYSE: MMR). The PXP transaction closed on May 31, 2013 and the MMR transaction closed on June 3, 2013.

The transactions add a high quality portfolio of oil and gas assets to FCX’s global mining business to create a premier U.S.-based natural resource company. The acquired businesses provide exposure to energy markets with positive fundamentals, strong margins and cash flows, exploration leverage and financially attractive long-term investment opportunities. The portfolio of assets includes established oil production facilities in California, a growing production profile in the onshore Eagle Ford trend in Texas, significant production facilities and growth potential in the Deepwater Gulf of Mexico and large onshore resources in the Haynesville natural gas trend in Louisiana. The company will also have an industry leading position in the emerging shallow water, ultra-deep gas trend on the Shelf of the Gulf of Mexico and onshore in South Louisiana.

The value of the transactions totaled $19 billion, including $10.0 billion in assumed debt, $5.5 billion in cash consideration and 91 million shares of FCX stock (valued at $2.8 billion as of May 31, 2013) and other consideration, including the PXP supplemental dividend and the value of the royalty trust units to MMR shareholders. After giving effect to these transactions, FCX has approximately 1,038 million shares outstanding.

James R. Moffett, Chairman of the Board of FCX, said: “These transactions will enhance our portfolio of large-scale, geographically diverse natural resource assets with exceptional exploration and development characteristics. We are pleased to welcome the PXP and MMR oil and gas teams to FCX’s global family and look forward to the opportunities for value creation that our expanded asset base provides for shareholders.”

Richard C. Adkerson, Vice Chairman, President and Chief Executive Officer of FCX, said: “The transaction adds a high quality portfolio of North American based oil and gas assets with strong current cash flows, a financially attractive growth profile and complementary exposure to commodities with favorable supply and demand fundamentals essential to the world’s economies. We are focused on executing our strategy of delivering strong operational and project development performance to provide cash flows to achieve our debt reduction targets, generate attractive returns through organic growth and continue our long standing tradition of providing cash returns to shareholders.”

James. C. Flores, Vice Chairman of FCX and President and Chief Executive Officer of Freeport-McMoRan Oil & Gas, FCX’s new wholly owned subsidiary, said: “The addition of PXP’s U.S. oil and gas assets to FCX’s global mining business establishes a significant, long-term commodities business positioned to generate meaningful returns over an extended period. We are excited to join FCX’s global team and will be focused on executing our highly profitable, long-term, oil-focused growth plan, which is complementary to the growth profile and cash margins of the large, low-cost, expandable asset base characteristics of FCX.”

 

 

Freeport-McMoRan Copper & Gold

 

 

1        


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FINANCIAL PROFILE

For the twelve months ended December 31, 2012, pro forma revenues totaled $22.7 billion with pro forma EBITDA (equals operating income plus depreciation, depletion, and amortization) of $10.5 billion. Pro forma for the transactions, total debt at March 31, 2013 approximated $20.8 billion and consolidated cash totaled $4.6 billion, excluding supplemental dividends paid or to be paid totaling $1.4 billion. In addition, FCX has a $3.0 billion revolving bank credit facility with no amounts drawn.

FCX expects to use cash flows in excess of capital expenditures, dividends and other cash requirements of the combined company to reduce debt to a targeted level of $12 billion over the next three years. As previously announced in May 2013, FCX plans to complete $1.5 billion in asset sales and reduce its capital spending to offset the cash required for the recently announced supplemental dividends.

MANAGEMENT TEAM AND BOARD OF DIRECTORS

James R. Moffett will continue as Chairman of FCX and Richard C. Adkerson will continue as President and Chief Executive Officer of FCX and has been appointed Vice Chairman of FCX. James C. Flores, previously Chairman, President and Chief Executive Officer of PXP, has been named Vice Chairman of FCX and the President and Chief Executive Officer of Freeport-McMoRan Oil & Gas, FCX’s new wholly owned subsidiary. Kathleen L. Quirk will continue as Executive Vice President and Chief Financial Officer of FCX.

As previously reported, FCX appointed three former directors of PXP to its Board of Directors: James C. Flores, Alan R. Buckwalter, III and Thomas A. Fry, III. FCX’s Board of Directors is now comprised of 15 members, including 11 independent directors, who possess a diverse range of perspectives and experience in the mining and oil and gas industries, geology, business, finance, economics, accounting and public affairs. In addition, Messrs. Moffett, Adkerson and Flores comprise the newly formed Office of the Chairman.

FCX is a premier U.S.-based natural resource company with an industry leading global portfolio of mineral assets, significant oil and gas resources and a growing production profile. FCX is the world’s largest publicly traded copper producer.

FCX’s portfolio of 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 and El Abra operations in South America; the Tenke Fungurume minerals district in the Democratic Republic of Congo; and significant oil and natural gas assets in North America, including reserves in the Deepwater Gulf of Mexico, onshore and offshore California, in the Eagle Ford and Haynesville shale plays and industry leading position in the emerging shallow water, ultra-deep gas trend on the Shelf of the GOM and onshore in South Louisiana. Additional information about FCX is available on FCX’s website at www.fcx.com.

 

 

Cautionary Statement Regarding Forward Looking Statements: This press release contains forward-looking statements. Forward-looking statements are all statements other than statements of historical facts. The words “anticipates,” “may,” “can,” “plans,” “believes,” “estimates,” “expects,” “projects,” “intends,” “likely,” “will,” “should,” “to be,” and any similar expressions or other words of similar meaning are intended to identify those assertions as forward-looking statements. It is uncertain whether the events anticipated will transpire, or if they do occur what impact they will have on the results of operations and financial condition of FCX, on any future asset sales or on future capital allocation decisions. These forward-looking statements involve significant risks and uncertainties that could cause actual results to differ materially from those anticipated, the ability of FCX to integrate the acquired PXP and MMR operations, the ability of FCX to consummate any future asset sales on beneficial terms or at all, the timing and proceeds generated by any such sales, the ability of FCX to determine that all or a portion of the contemplated asset sales are not desirable and not to pursue or consummate such sales, the ability of FCX to determine not to proceed with reductions in any capital spending plans, the ability of FCX to fund its oil and gas business with cash flows generated by such business, FCX’s future capital needs and capital allocation decisions, including future decisions by FCX to allocate capital among its operating segments and to fund its capital expenditures in a manner other than the manner set forth in the press release, FCX’s ability to meet its stated debt reduction goals, the ability to implement the anticipated business plans following closing and achieve anticipated benefits and savings, and the ability to realize opportunities for growth. Other important economic, political, regulatory, legal, technological, competitive and other uncertainties are identified in the documents filed with the Securities and Exchange Commission by FCX from time to time, including its Annual Report on Form 10-K, Quarterly Report on Form 10-Q, and Current Reports on Form 8-K. The forward-looking statements including in this press release are made only as of the date hereof. FCX does not undertake any obligation to update the forward-looking statements included in this press release to reflect subsequent events or circumstances.

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Freeport-McMoRan Copper & Gold

 

 

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