As
filed
with the United States Securities and Exchange Commission August 10,
2006.
UNITED
STATES SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
TO
Tender
Offer Statement Under Section 14(d)(1) or 13(e)(1)
of
the
Securities Exchange Act of 1934
Freeport-McMoRan
Copper & Gold Inc.
(Name
of Subject Company)
______________________
Freeport-McMoRan
Copper & Gold Inc.
(Name
of Filing Person - Offeror)
______________________
7%
Convertible Senior Notes due 2011
(Title
of Class of Securities)
______________________
35671DAJ4
and 3567DAK1
(CUSIP
Number of Class of Securities)
______________________
Kathleen
L. Quirk
Vice
President and Treasurer
Freeport-McMoRan
Copper & Gold Inc.
1615
Poydras Street
New
Orleans, Louisiana 70112
Telephone:
(504) 582-4000
Facsimile:
(504) 582-4511
(Name,
Address and Telephone Number of Person Authorized
to
Receive Notices and Communications on Behalf of the Filing
Person)
Copies
to:
Douglas
N. Currault II, Esq.
Jones,
Walker, Waechter,
Poitevent,
Carrère & Denègre, L.L.P.
201
St. Charles Avenue, 51st Floor
New
Orleans, Louisiana 70170
Telephone:
(504) 582-8000
Facsimile:
(504) 582-4250
Calculation
of Filing Fee
|
Transaction
Valuation*
|
Amount
of Filing Fee
|
|
$552,087,767
|
$16,949
|
| * |
Estimated
for purposes of calculating the amount of the filing fee only.
The amount
assumes the conversion of all of our outstanding 7% Convertible
Senior
Notes due 2011 into our Class B Common Stock. If all of the notes
are
converted, we will pay to the holders thereof an aggregate of $26,384,670
in cash plus accrued and unpaid interest on the Notes of $570,039
and
issue to the holders thereof an aggregate of 9,496,077 shares of
our Class
B Common Stock having an aggregate market value of $525,133,058
(based on
the average of the high and low trading prices of our Class B Common
Stock
on the New York Stock Exchange on August 8, 2006). Based on the
maximum
value of the offer, the transaction value is equal to $552,087,767.
The
amount of the filing fee, calculated in accordance with Rule 0-11
of the
Securities Exchange Act of 1934, as amended, and the Fee Rate Advisory
#6
for Fiscal Year 2006 issued by the Securities and Exchange Commission
on
March 1, 2006, equals $30.70 per million of the transaction
value.
|
|
[
]
|
Check
the box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously
paid.
Identify the previous filing by registration statement number,
or the Form
or Schedule and the date of its
filing.
|
Amount
Previously Paid: N/A
Form
or
Registration No.: N/A
Filing
Party: N/A
Date
Filed: N/A
|
[
]
|
Check
the box if the filing relates solely to preliminary communications
made
before the commencement of a tender
offer.
|
Check
the
appropriate boxes below to designate any transactions to which the statement
relates:
|
[
]
|
third-party
tender offer subject to Rule 14d-1.
|
|
[X]
|
issuer
tender offer subject to Rule 13e-4.
|
[X]
going
private transaction subject to Rule 13e-3.
|
[
]
|
amendment
to Schedule 13D under Rule 13d-2.
|
Check
the
following box if the filing is a final amendment reporting the results of
the
tender offer: [ ]
____________________________________________________________________________________________________________
INTRODUCTORY
STATEMENT
This
combined Tender Offer Statement on Schedule TO and Rule 13e-3 Transaction
Statement (collectively, the “Schedule TO”) is being filed by Freeport-McMoRan
Copper & Gold Inc., a Delaware corporation (the “Company”), pursuant to
Section 13(e) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), in connection with its offer (“Offer of Premium”) to pay a cash premium
of $90 (the “Conversion Premium”), plus accrued interest up to, but excluding,
the conversion date, for each $1,000 principal amount of 7% Convertible Senior
Notes due 2011 (the “Notes”) that is converted into the Company’s Class B Common
Stock (the “Common Stock”), par value $0.10 per share. No fractional shares will
be issued in the Offer of Premium, and, in lieu thereof, holders of the Notes
who would have been entitled to a fractional share will be paid an amount
in
cash based on the closing price of the Common Stock on the last trading day
before the conversion date.
The
Offer
of Premium will be on the terms and subject to the conditions set forth in
the
offering circular dated August 10, 2006 (the “Offering Circular”), a copy of
which is attached as Exhibit (a)(1) to this Schedule TO, and in the related
Special Conversion Letter of Transmittal, a copy of which is attached hereto
as
Exhibit (a)(2). The Offer of Premium will expire at 12:00 midnight, Eastern
Standard Time, on September 7, 2006.
At
any
time, we may waive any condition to the Offer of Premium and accept all Notes
tendered for conversion pursuant to the Offer of Premium. We can also extend
the
expiration date of the Offer of Premium. Furthermore, we reserve the right
at
any time to terminate the Offer of Premium for any reason or for no reason
at
all and not accept any Notes tendered. We can also amend the terms of the
Offer
of Premium at any time, and any amendment will apply to all Notes tendered
pursuant to the Offer of Premium.
ITEM
1.
SUMMARY
TERM SHEET.
The
information set forth in the Offering Circular under the heading “Summary -
Summary of the Offer” is incorporated herein by reference.
ITEM
2. SUBJECT
COMPANY INFORMATION.
(a) Name
and Address.
The
issuer of the securities subject to the Offer of Premium is Freeport-McMoRan
Copper & Gold Inc., a Delaware corporation. Our executive offices are
located at 1615 Poydras Street, New Orleans, Louisiana 70112. Our telephone
number is (504) 582-4000.
(b) Securities.
The
subject class of securities are our 7% Convertible Senior Notes due 2011.
As of
August 8, 2006, there was $293,163,000 aggregate principal amount of Notes
outstanding.
(c) Trading
Market and Price.
The
information set forth in the Offering Circular under the heading “Price Ranges
for Notes and Common Stock and Quarterly and Supplemental Cash Dividends” is
incorporated herein by reference.
ITEM
3. IDENTITY
AND BACKGROUND OF FILING PERSON.
(a) Name
and Address.
Freeport-McMoRan Copper & Gold Inc. is the filing person and subject
company. The business address and telephone number of the Company are set
forth
under Item 2(a) of this Schedule TO. With respect to the directors and executive
officers of the Company, the information is set forth in our definitive proxy
statement on Schedule 14A relating to our 2006 annual meeting of stockholders,
which was filed with the U.S. Securities and Exchange Commission (the “SEC”) on
March 22, 2006, and which is incorporated herein by reference. No person
controls the Company.
ITEM
4.
TERMS
OF
THE TRANSACTION.
(a) Material
Terms.
The
information set forth in the Offering Circular under the headings “Summary -
Summary of the Offer,” “Procedures for Participating in the Offer,” “Special
Factors,” “The Offer” and “Certain United States Federal Income Tax
Considerations” is incorporated herein by reference.
(b) Purchases.
None of
the Notes are held by any officer, director or affiliate of the Company.
Accordingly, we do not anticipate that any officer, director or affiliate
of the
Company will participate in the Offer of Premium.
ITEM
5.
PAST
CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
(e) Agreements
Involving the Subject Company’s Securities.
No
agreement, arrangement or understanding exists between the Company (including
any person specified in Item 3(a) of this Schedule TO) and any other person
with
respect to any securities of the Company.
ITEM
6. PURPOSES
OF THE TRANSACTION AND PLANS OR PROPOSALS.
(a) Purposes.
The
information set forth in the Offering Circular under the headings “Summary -
Background and Purpose” and “Special Factors - Background of and Reasons for the
Offer” is incorporated herein by reference.
(b) Use
of Securities Acquired:
The
Notes acquired pursuant to the Offer of Premium will be cancelled by the
Company.
(c) Plans.
(1) None.
(2) None.
(3) The
information set forth in the Offering Circular under the headings “Summary -
Background and Purpose,” “Risk Factors - Risks Relating to the Offer and Notes,”
“Special Factors - Plans of the Company after the Offer; Effects of the Offer,”
“Dividend Policy,” “Summary Description of Common Stock,” and “Capitalization”
is incorporated herein by reference.
(4) None.
(5) None.
(6),
(7) The
information set forth in the Offering Circular under the heading “Special
Factors
-
Plans
of
the Company after the Offer; Effects of the Offer” is incorporated herein by
reference.
(8) None.
(9) None.
(10) None.
ITEM
7. SOURCE
AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
(a) Source
of Funds.
The
information set forth in the Offering Circular under the headings “Summary of
the Offer - What are we seeking to accomplish in the offer and what
consideration are we offering in the offer?,” “Summary of the Offer - How will
we pay the Conversion Premium for the Notes converted in the Offer?” and
“Capitalization” are incorporated herein by reference. See the Transaction
Valuation Note above for the total consideration that we will be required
to
deliver to the holders of the Notes if all of the outstanding Notes are tendered
in the Offer of Premium.
(b) Conditions.
Not
applicable.
(d) Borrowed
Funds.
Not
applicable.
ITEM
8. INTEREST
IN SECURITIES OF THE SUBJECT COMPANY.
(a) Securities
Ownership.
None.
(b) Securities
Transactions.
From
September 2005 through July 2006, we completed privately negotiated transactions
with Note holders resulting in the early conversion of $281.8 million
principal amount of the Notes (or approximately 49% of the Notes then
outstanding) into Common Stock.
In
those
transactions, the participating holders converted their Notes into
9.1 million
shares of Common Stock and received premium and accrued interest payments
of
$27.6 million cash. We recorded net charges totaling $25.0 million
related to those transactions. As of August 8, 2006, $293.2 million principal
amount of Notes remain outstanding. These
transactions were made in reliance on the exemption from registration provided
under Section 3(a)(9) of the Securities Act of 1933.
ITEM
9. PERSONS/ASSETS
RETAINED, EMPLOYED, COMPENSATED OR USED.
(a) Solicitations
or Recommendations.
No
persons have been employed, retained or otherwise compensated to make
solicitations or recommendations in connection with the Offer of Premium.
For
information regarding our financial advisor, conversion agent and information
agent, see the information set forth in the Offering Circular under the headings
“Financial Advisers,” “Information Agent” and “Conversion Agent,” which is
incorporated herein by reference.
ITEM
10. FINANCIAL
STATEMENTS.
(a),
(b) Financial
Statements:
The
information in the Offering Circular under the headings “Capitalization,” “Ratio
of Earnings to Fixed Charges and Preferred Stock Dividends,” “Selected
Historical Consolidated Financial and Operating Data,” and “Pro Forma Summary of
Debt Maturities” and the financial statements and information contained in the
reports described in the Offering Circular under the heading “Where You Can Find
Additional Information” are incorporated herein by reference.
ITEM
11. ADDITIONAL
INFORMATION.
(a) Agreements,
Regulatory Requirements and Legal Proceedings.
(2) We
are
not aware of any governmental of federal or state regulatory approvals required
for the consummation of the Offer of Premium, other than compliance with
applicable securities laws.
(b) Other
Material Information.
None.
|
Exhibit
Number
|
Description
|
| |
|
|
(a)(1)(i)
|
Offering
Circular, dated August 10, 2006.
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| |
|
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(a)(1)(ii)
|
Form
of Special Conversion Letter of Transmittal.
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(a)(1)(iii)
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Form
of Letter to Registered Holders and DTC Participants.
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(a)(1)(iv)
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Form
of Letter to Clients.
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| |
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(a)(5)
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Press
Release Regarding Offer, dated August 10, 2006.
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| |
|
ITEM
13. INFORMATION
REQUIRED BY SCHEDULE 13E-3.
The
Offer
of Premium may constitute a “going-private” transaction within the meaning of
Rule 13e-3 promulgated under the Exchange Act. The following sets forth the
information required by Schedule 13E-3 that has not already been set forth
in
Items 1-12 above. The information set forth in the Offering Circular is
incorporated herein by reference to the items required by Schedule
13E-3.
ITEM
2 OF
SCHEDULE 13E-3. SUBJECT
COMPANY INFORMATION
(d) Dividends.
The
information set forth in the Offering Circular under the heading “Price Ranges
for Notes and Common Stock and Quarterly Cash Dividends” and “Dividend Policy”
are incorporated herein by reference.
(e) Prior
Public Offerings.
In
February 2003, the Company issued the Notes in the aggregate principal amount
of
$575,000,000 at an issue price of $1,000 per Note in a private placement.
On
April 30, 2003, the Securities and Exchange Commission declared effective
the
Company’s registration statement on Form S-3 pursuant to which holders of the
Notes were able to resell the Notes or shares of our Common Stock into which
the
Notes are convertible.
(f) Prior
Stock Purchases.
During
the 3rd
quarter
of 2005, the Company completed privately negotiated transactions with Note
holders resulting in the early conversion of $188.4 million principal amount
of
the Notes (or approximately 32.8% of the Notes then outstanding) into the
Company’s Common Stock. In these transactions, the participating holders
converted their Notes into 6.1 million shares of the Company’s Common Stock and
received $19.2 million in cash, which amount includes unpaid interest on
the
Notes through the date of the transactions and cash premiums paid to Note
holders. The amounts of these cash premiums ranged from $94.40 to $100.70
per
$1,000 principal amount of Notes converted, and the average of the cash premium
was $96.90 per $1,000 principal amount of Notes converted.
During
the 4th
quarter
of 2005, the Company completed privately negotiated transactions with Note
holders resulting in the early conversion of $62.9 million principal amount
of
the Notes (or approximately 16.3% of the Notes then outstanding) into the
Company’s Common Stock. In these transactions, the participating holders
converted their Notes into 2.0 million shares of the Company’s Common Stock and
received $5.9 million in cash, which amount includes unpaid interest on the
Notes through the date of the transactions and cash premiums paid to Note
holders. The amounts of these cash premiums ranged from $70.20 to $93.40
per
$1,000 principal amount of Notes converted, and the average of the cash premium
was $79.90 per $1,000 principal amount of Notes converted.
During
the 1st
quarter
of 2006, the Company completed privately negotiated transactions with Note
holders resulting in the early conversion of $11.0 million principal amount
of
the Notes (or approximately 3.4% of the Notes then outstanding) into the
Company’s Common Stock. In these transactions, the participating holders
converted their Notes into 0.4 million shares of the Company’s Common Stock and
received $0.8 million in cash, which amount includes unpaid interest on the
Notes through the date of the transactions and cash premiums paid to Note
holders. The amount of the cash premium was $49.70 per $1,000 principal amount
of Notes converted before accrued interest.
During
the 2nd
quarter
of 2006, the Company completed privately negotiated transactions with Note
holders resulting in the early conversion of $5.0 million principal amount
of
the Notes (or approximately 1.6% of the Notes then outstanding) into the
Company’s Common Stock. In these transactions, the participating holders
converted their Notes into 0.2 million shares of the Company’s Common Stock and
received $0.3 million in cash, which amount includes unpaid interest on the
Notes through the date of the transactions and cash premiums paid to Note
holders. The amount of the cash premium was $44.40 per $1,000 principal amount
of Notes converted before accrued interest.
During
the 3rd
quarter
of 2006, the Company completed privately negotiated transactions with Note
holders resulting in the early conversion of $14.5 million principal amount
of
the Notes (or
approximately
4.7% of the Notes then outstanding) into the Company’s Common Stock. In these
transactions, the participating holders converted their Notes into 0.5 million
shares of the Company’s Common Stock and received $1.3 million in cash, which
amount includes unpaid interest on the Notes through the date of the
transactions and cash premiums paid to Note holders. The amount of the cash
premium was $65.00 per $1,000 principal amount of Notes converted before
accrued
interest.
ITEM
3 OF
SCHEDULE 13E-3. IDENTITY
AND BACKGROUND OF FILING PERSON.
(b) Business
and Background of Entities.
Not
applicable.
(c) Business
and Background of Natural Persons.
The
information required by this Item is set forth in our definitive proxy statement
on Schedule 14A relating to our 2006 annual meeting of stockholders, which
was
filed with the SEC on March 22, 2006 and is incorporated herein by reference.
During the past five years, no director or executive officer of the Company
has
been convicted in a criminal proceeding or a party to any judicial or
administrative proceeding that resulted in a judgment, decree or final order
enjoining such person from future violations of, or prohibiting activities
subject to, federal or state securities laws. Each director and executive
officer of the Company is a citizen of the Untied States except executive
officer Adrianto Machribie, who is an Indonesian citizen.
ITEM
4 OF
SCHEDULE 13E-3. TERMS
OF
THE TRANSACTION.
(c) Different
Terms.
Not
applicable.
| |
(d)
|
Appraisal
Rights.
Holders of the Notes are not entitled to appraisal or dissenters’
rights.
|
(e) Provisions
for Unaffiliated Security Holders.
None.
(f) Eligibility
for Listing or Trading.
The
information set forth in the Offering Circular under the heading “Summary of the
Offer -
Will the
Common Stock issued upon conversion of the Notes be listed for trading?” is
incorporated herein by reference.
ITEM
5 OF
SCHEDULE 13E-3. PAST
CONTRACTS, TRANSACTIONS, NEGOTIATIONS AND
AGREEMENTS.
(a) Transactions.
The
information required by this Item is set forth in our definitive proxy statement
on Schedule 14A relating to our 2006 annual meeting of stockholders, which
was
filed with the SEC on March 22, 2006 and is incorporated herein by reference.
(b) Significant
Corporate Events.
Not
Applicable.
(c) Negotiations
or Contacts.
Not
Applicable.
ITEM
7 OF
SCHEDULE 13E-3. PURPOSES,
ALTERNATIVES, REASONS AND EFFECTS.
(a)-(c) Purposes;
Alternatives; Reasons.
This
information set forth in the Offering Circular under the headings “Summary
-
Background and Purpose” and “Special Factors - Background of and Reasons for the
Offer” is incorporated herein by reference.
(d) Effects.
The
information set forth in the Offering Circular under the headings “Special
Factors - Plans of the Company after the Offer; Effects of the Offer” and
“Certain United States Federal Income Tax Considerations” is incorporated herein
by reference.
ITEM
8 OF
SCHEDULE 13E-3. FAIRNESS
OF THE TRANSACTION.
(a),
(b) Fairness;
Factors Considered in Determining Fairness.
The
information set forth in the Offering Circular under the heading “Special
Factors - Fairness of the Offer” is incorporated herein by reference.
(c) Approval
of Security Holders.
The
Offer of Premium does not require the approval of unaffiliated security holders
of the Company.
(d) Unaffiliated
Representative.
None of
our non-employee directors have retained an unaffiliated representative to
act
on behalf of unaffiliated security holders of the Company for purposes of
negotiating the Offer of Premium or preparing a report concerning the fairness
of the Offer of Premium.
(e) Approval
of Directors.
The
Offer
of Premium was unanimously approved by our non-employee directors and Board
of
Directors.
(f) Other
Offers.
Not
applicable.
ITEM
9 OF
SCHEDULE 13E-3. REPORTS, OPINIONS, APPRAISALS AND CERTAIN
NEGOTIATIONS.
(a) Report,
Opinion or Appraisal.
We did
not receive any report, opinion or appraisal from an outside party that is
materially related to the Offer of Premium.
(b),
(c) Preparer
and Summary of the Report, Opinion or Appraisal; Availability of
Documents.
Not
applicable.
ITEM
10
OF SCHEDULE 13E-3. SOURCE
AND AMOUNT OF FUNDS OR OTHER
CONSIDERATION.
(c) Expenses.
The
information set forth in the Offering Circular under the heading “Fees and
Expenses” is incorporated herein by reference. The Company will be responsible
for paying all such expenses.
ITEM
12
OF SCHEDULE 13E-3. THE
SOLICITATION OR RECOMMENDATION.
(d),
(e) Intent
to Tender or Vote in a Going-Private Transaction; Recommendations of
Others.
No
director, officer or affiliate of the company currently owns any Notes or
has
made a recommendation either in support of or opposed to the Offer of
Premium.
ITEM
14
OF SCHEDULE 13E-3. PERSONS/ASSETS,
RETAINED, EMPLOYED, COMPENSATED OR USED.
(b) Employees
and corporate assets.
Certain
officers or other employees of the Company may respond to questions regarding
the Offer of Premium and solicit tenders of Notes in the Offer of Premium.
No
special compensation will be paid to any such officer or employee for any
duties
performed in connection with the Offer of Premium, which will be identical
to
their regular duties.
After
due
inquiry, and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and
correct.
FREEPORT-McMoRan
COPPER & GOLD INC.
By:
/s/
Kathleen L. Quirk
Kathleen
L. Quirk
Senior
Vice President, Chief Financial Officer
&
Treasurer
Dated:
August 10, 2006
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
| |
|
|
|
Offering
Circular, dated August 10, 2006.
|
| |
|
|
|
Form
of Special Conversion Letter of Transmittal.
|
| |
|
|
|
Form
of Letter to Registered Holders and DTC Participants.
|
| |
|
|
|
Form
of Letter to Clients.
|
| |
|
|
|
Press
Release Regarding Offer, dated August 10, 2006.
|
| |
|