Item 1.01. Entry into a Material Definitive Agreement.
On
The Third Amendment includes the following changes to the financial covenants
during the covenant increase period, which ends on the earlier of (1)
• Total Leverage Ratio - • suspension of the total leverage ratio through the quarter endingJune 30, 2021 ; • for the quarter endingSeptember 30, 2021 , through and including the end of the Covenant Increase Period, the total leverage ratio cannot exceed 5.25 to 1.00; and • following the Covenant Increase Period, the total leverage ratio cannot exceed 3.75 to 1.00;
• Minimum Liquidity -
• adds a minimum liquidity covenant of$1.0 billion (consisting of consolidated unrestricted cash and availability under the Revolving Credit Facility) applicable to each quarter ending on or prior to the earlier of (i)June 30, 2021 and (ii) the end of the Covenant Increase Period; and
• Interest Expense Coverage Ratio -
• the interest expense coverage ratio cannot exceed 2.00 to 1.00; and
• following the Covenant Increase Period, the interest expense coverage ratio cannot exceed 2.25 to 1.00.
Other changes made pursuant to the Third Amendment include:
• limiting the priority debt basket applicable to non-borrower subsidiaries
and the corresponding general lien basket during the Covenant Increase
Period (subject to certain exceptions);
• eliminating FCX's ability to declare or make, or agree to pay or make any
restricted payments (subject to certain exceptions) during the Covenant
Increase Period; and
• increasing the drawn pricing during the Covenant Increase Period and
permanently increasing the undrawn pricing.
The Third Amendment provides for no other significant changes.
As of
Certain of the lenders and agents under the Revolving Credit Facility, and their respective affiliates have in the past engaged, and may in the future engage, in transactions with FCX and its affiliates, and have in the past performed, and may in the future perform, services, including
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commercial banking, financial advisory and investment banking services, for FCX and its affiliates, in the ordinary course of business for which they have received or will receive customary fees and expenses.
The foregoing description of the Third Amendment is not intended to be complete and is qualified in its entirety by reference to the Third Amendment, a copy of which is attached hereto as Exhibit 10.1, and is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
See Item 1.01, which is incorporated herein by reference.
Item. 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Effective
• clarifying that annual meetings of stockholders are permitted to be held by means of remote communication in accordance with DGCL and adding notice requirements for a meeting held solely by means of remote communication (Article IV, Sections 1, 3 and 6); • clarifying the majority voting standard for election of directors (Article IV, Section 2); • clarifying the right of stockholders to vote by proxy at meetings of stockholders (Article IV, Section 4); • adding information requirements and timing restrictions to the provisions regarding the ability of stockholders owning at least 15% of FCX's common stock to call special meetings (Article IV, Sections 7 and 8); • clarifying that the Chairman of the Board or such other person designated by the Board shall act as the presiding officer at meetings of stockholders (Article IV, Section 9 and Articles X and XI); • modifying the advance notice provisions to provide that stockholders may provide timely notice of director nominations and other business to be presented at FCX's annual meeting no earlier than 120 days (rather than 90 days) and no later than 90 days (rather than 60 days) prior to the first anniversary of the preceding year's annual meeting of stockholders, and requiring that a stockholder providing notice under these provisions must provide the information required to be disclosed in the proxy statement under the applicable federal securities laws and that a stockholder director nominee must complete, sign and supplement upon request, a questionnaire provided by FCX (Article IV, Sections 10 and 11); • specifying that any vacancy occurring on the Board may be filled by a majority of the remaining members of the Board (although such majority is less than a quorum) or by the stockholders (Article V, new Section 4);
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• adding an emergency provision as permitted under DGCL that eliminates quorum requirements for Board and/or committee meetings called during times of emergency, disaster or catastrophe or other similar emergency condition, including a pandemic or an epidemic that has been recognized as an emergency by the federal government (Article VIII, new Section 5); • modifying the notices and waivers provisions to be more closely in line with DGCL, including the addition of an electronic notice provision (Article XXIV); and • adding an exclusive forum provision providing that theDelaware Court of Chancery will be the sole and exclusive forum for certain litigation, including any derivative action or any action asserting a claim that is based upon a violation of a duty by a current or former director, officer, employee or stockholder of FCX in such capacity (new Article XXVII).
The foregoing description of the Amended and Restated By-Laws is not intended to be complete and is qualified in its entirety by reference to the full text of the Amended and Restated By-Laws, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
As a result of the public health impact of the COVID-19 pandemic and to
prioritize the health and well-being of meeting participants, FCX held its 2020
annual meeting of stockholders on
Of the 1,451,960,774 shares of FCX's common stock outstanding as of the
Proposal No. 1: Election of six director nominees.
Broker Name Votes For Votes Against Abstentions Non-Votes Richard C. Adkerson 915,167,754 19,317,509 28,636,265 209,509,145 Gerald J. Ford 810,556,552 123,992,646 28,572,330 209,509,145 Lydia H. Kennard 919,976,294 14,348,327 28,796,907 209,509,145 Dustan E. McCoy 818,618,583 115,682,550 28,820,396 209,509,145
Proposal No. 2: Ratification of the appointment of
Broker Votes For Votes Against Abstentions Non-Votes 1,158,817,681 12,327,960 1,485,032 N/A
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Proposal No. 3: Approval, on an advisory basis, of the compensation of FCX's named executive officers.
Broker Votes For Votes Against Abstentions Non-Votes 836,591,545 124,155,514 2,374,469 209,509,145
Item 8.01. Other Events.
As disclosed under Item 5.03 herein, effective
2021 STOCKHOLDER PROPOSALS
If you would like us to consider including a proposal in next year's proxy
statement, you must comply with the requirements of the
If you are an eligible stockholder, or group of stockholders, and would like us
to consider including a proxy access director nomination in next year's proxy
statement, you must comply with the requirements of our proxy access by-law and
deliver the required notice and supporting materials in writing to: Corporate
Secretary,
If you would like to present a proposal or director candidate at the next annual
meeting but do not wish to have it included in our proxy statement, you must
comply with the specific procedural requirements in our by-laws and deliver it
in writing to: Corporate Secretary,
If you would like a copy of the requirements or procedures described above, please contact our corporate secretary as provided above, or access our by-laws on our website at fcx.com under "About Us - Corporate Governance - Governance Documents."
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Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Number Exhibit Title 3.1 Amended and Restated By-Laws ofFreeport-McMoRan Inc. , effective as ofJune 3, 2020 . 10.1 Third Amendment dated as ofJune 3, 2020 to the Revolving Credit Agreement dated as ofApril 20, 2018 , as amended, amongFreeport-McMoRan Inc. ,PT Freeport Indonesia, Freeport-McMoRan Oil & Gas LLC ,JPMorgan Chase Bank, N.A ., as administrative agent, and each of the lenders and issuing banks party thereto. 104 The cover page from this Current Report on Form 8-K, formatted in Inline XBRL.
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