As filed with the Securities and Exchange Commission on December 15, 1997
Registration No. 333-________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
PHELPS DODGE CORPORATION
(Exact name of registrant as specified in its charter)
New York 13-1808503
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2600 North Central Avenue
Phoenix, AZ 85004
(Address of Principal Executive Offices
including Zip Code)
DEFERRED COMPENSATION PLAN FOR
THE DIRECTORS OF PHELPS DODGE CORPORATION and
PHELPS DODGE CORPORATION AMENDED AND RESTATED
DIRECTORS STOCK UNIT PLAN
(Full titles of the Plans)
Robert C. Swan
Vice President and Secretary
2600 North Central Avenue
Phoenix, Arizona 85004
(602) 234-8100
(Name, address and telephone number of agent for service)
================================================================================
<PAGE>
CALCULATION OF REGISTRATION FEE
================================================================================
Proposed Proposed
maximum maximum
Title of offering aggregate Amount of
securities to Amount to be price per offering registration
be registered registered unit price fee
Common Stock, 100,000(1) (2) $6,425,000(2) $1,946.97
par value
$6.25 per share
================================================================================
(1) To be offered pursuant to the Deferred Compensation Plan for the
Directors of Phelps Dodge Corporation (50,000 shares) and the Phelps
Dodge Corporation Amended and Restated Directors Stock Unit Plan
(50,000 shares) (the "Plans"). This Registration Statement also covers
100,000 Rights to purchase Junior Participating Cumulative Preferred
Shares (the "Rights") which are appurtenant to and trade with the
Common Stock. Such indeterminable number of additional shares as may be
distributed by the operation of the recapitalization provisions of the
Plans is hereby also registered.
(2) Computed pursuant to Rule 457(h) solely for the purpose of deter mining
the registration fee, based upon an assumed price of $64.25 per share,
the average of the high and low sale prices of the Registrant's Common
Stock as reported on the New York Stock Exchange on December 11, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
Incorporated by reference in this Registration Statement are
the following documents heretofore filed by Phelps Dodge Corporation (the
"Company") with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"):
(a) The Company's latest annual report filed pursuant to
Sections 13(a) or 15(d) of the Exchange Act;
(b) All other reports filed by the Company pursuant to
Section 13(a) or 15(d) of the Exchange Act since the
end of the fiscal year covered by the annual report
referred to in (a) above; and
(c) The description of the Company's Common Stock, par
value $6.25 per share (the "Common Stock"), contained
in a registration statement filed under the Exchange
Act, and any amendment or report filed for the
purpose of updating such description.
(d) The description of the Rights which is contained in a
Form 8-K Report filed under the Exchange Act,
including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be part hereof from the dates of filing of such documents.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
None.
<PAGE>
Item 6. Indemnification of Directors and Officers
Article III of the By-Laws of the Company contains the
following provisions:
"Sec. 7. Indemnification -- Third Party and Derivative
Actions.
(a) The Company shall indemnify any person made, or threatened
to be made, a party to an action or proceeding other than one by or in the right
of the Company to procure a judgment in its favor, whether civil or criminal,
including an action by or in the right of any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture, trust, employee
benefit plan or other enterprise, which any Director or officer of the Company
served in any capacity at the request of the Company, by reason of the fact that
he, his testator or intestate, is or was a Director or officer of the Company,
or is or was serving such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement and expenses (including attorneys' fees)
incurred in connection with such action or proceeding, or any appeal therein,
provided that no indemnification may be made to or on behalf of such person if
(i) his acts were committed in bad faith or were the result of his active and
deliberate dishonesty and were material to such action or proceeding or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
(b) The Company shall indemnify any person made, or threatened
to be made, a party to an action by or in the right of the Company to procure a
judgment in its favor by reason of the fact that he, his testator or intestate,
is or was a Director or officer of the Company, or is or was serving at the
request of the Company as a Director or officer of any other corporation of any
type or kind, domestic or foreign, or of any partnership, joint venture, trust,
employee benefit plan or other enterprise, against judgments, amounts paid in
settlement and expenses (including attorneys' fees) incurred in connection with
such action, or any appeal therein, provided that no indemnification may be made
to or on behalf of such person if (i) his acts were committed in bad faith or
were the result of his active and deliberate dishonesty and were material to
such action or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
(c) For the purpose of this Section 7, the Company shall be
deemed to have requested a person to serve an employee
2
<PAGE>
benefit plan where the performance by such person of his duties to the Company
also imposes duties on, or otherwise involves services by, such person to the
plan or participants or beneficiaries of the plan; excise taxes assessed on a
person with respect to an employee benefit plan pursuant to applicable law shall
be considered fines.
(d) The termination of any civil or criminal action or
proceeding by judgment, settlement, conviction or upon a plea of nolo
contendere, or its equivalent, shall not in itself create a presumption that any
such Director or officer has not met the standard of conduct set forth in this
Section 7. However, no Director or officer shall be entitled to indemnification
under this Section 7 if a judgment or other final adjudication adverse to the
Director or officer establishes (i) that his acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to the
cause of action so adjudicated, or (ii) that he personally gained in fact a
financial profit or other advantage to which he was not legally entitled.
"Sec. 8. Payment of Indemnification; Repayment.
(a) A person who has been successful, on the merits or
otherwise, in the defense of a civil or criminal action or proceeding of the
character described in Section 7 of this Article shall be entitled to
indemnification as authorized in such Section.
(b) Except as provided in Section 8(a), any indemnification
under Section 7 of this Article, unless ordered by a court, shall be made by the
Company only if authorized in the specific case:
(1) by the Board of Directors acting by a quorum consisting of
Directors who are not parties to the action or proceeding giving rise
to the indemnity claim upon a finding that the Director or officer has
met the standard of conduct set forth in Section 7 of this Article; or
(2) if a quorum under the foregoing clause (1) is not
obtainable or, even if obtainable, a quorum of disinterested Directors
so directs:
(i) by the Board of Directors upon the opinion in
writing of independent legal counsel (i.e., a reputable lawyer
or law firm not under regular retainer from the Company or any
subsidiary corporation) that indemnification is proper in the
circumstances because
3
<PAGE>
the standard of conduct set forth in Section 7 of this Article
has been met by such Director or officer, or
(ii) by the holders of the Common Shares of the
Company upon a finding that the Director or officer has met
such standard of conduct.
(c) Expenses incurred by a Director or officer in defending a
civil or criminal action or proceeding shall be paid by the Company in advance
of the final disposition of such action or proceeding upon receipt of an
undertaking by or on behalf of such Director or officer to repay such amount in
case he is ultimately found, in accordance with this Article, not to be entitled
to indemnification or, where indemnity is granted, to the extent the expenses so
paid exceed the indemnification to which he is entitled.
(d) Any indemnification of a Director or officer of the
Company under Section 7 of this Article, or advance of expenses under Section
8(c) of this Article, shall be made promptly, and in any event within 60 days,
upon the written request of the Director or officer.
"Sec. 9. Enforcement; Defenses. The right to indemnification
or advances as granted by this Article shall be enforceable by the Director or
officer in any court of competent jurisdiction if the Company denies such
request, in whole or in part, or if no disposition thereof is made within 60
days. Such person's expenses incurred in connection with successfully
establishing his right to indemnification, in whole or in part, in any such
action shall also be indemnified by the Company. It shall be a defense to any
such action (other than an action brought to enforce a claim for the advance of
expenses under Section 8(c) of this Article where the required undertaking, if
any, has been received by the Company) that the claimant has not met the
standard of conduct set forth in Section 7 of this Article, but the burden of
proving such defense shall be on the Company. Neither the failure of the Company
(including its Board of Directors, its independent legal counsel, and the
holders of its Common Shares), to have made a determination that indemnification
of the claimant is proper in the circumstances nor the fact that there has been
an actual determination by the Company (including its Board of Directors, its
independent legal counsel, and the holders of its Common Shares) that
indemnification of the claimant is not proper in the circumstances, shall be a
defense to the action or create a presumption that the claimant is not entitled
to indemnification.
4
<PAGE>
"Sec. 10. Contract; Savings Clause; Preservation of Other
Rights.
(a) The foregoing indemnification provisions shall be deemed
to be a contract between the Company and each Director and officer who serves in
such capacity at any time while these provisions as well as the relevant
provisions of the New York Business Corporation Law are in effect and any repeal
or modification thereof shall not affect any right or obligation then existing
with respect to any state of facts then or previously existing or any action or
proceeding previously or thereafter brought or threatened based in whole or in
part upon any such state of facts. Such a contract right may not be modified
retroactively without the consent of such Director or officer.
(b) If this Article or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify each Director or officer of the Company against
judgments, fines, amounts paid in settlement and expenses (including attorneys'
fees) incurred in connection with any actual or threatened action or proceeding,
whether civil or criminal, including an actual or threatened action by or in the
right of the Company, or any appeal therein, to the full extent permitted by any
applicable portion of this Article that shall not have been invalidated and to
the full extent permitted by applicable law.
(c) The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any by-law, agreement, vote of shareholders or Directors or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a Director or officer and shall inure to the benefit of the heirs, executors
and administrators of such a person. The Company is hereby authorized to provide
further indemnification if it deems it advisable by resolution of shareholders
or Directors or by agreement.
"Sec. 11. Indemnification of Persons Not Directors or Officers
of the Company. The Company may, by resolution adopted by the Board of Directors
of the Company, indemnify any person not a Director or officer of the Company,
who is made, or threatened to be made, a party to an action or proceeding,
whether civil or criminal, by reason of the fact that he, his testator or
intestate, is or was an employee or other agent of the Company, against
judgments, fines, amounts paid in settlement and expenses (including attorneys'
fees) incurred in connection
5
<PAGE>
with such action or proceeding, or any appeal therein, provided that no
indemnification may be made to or on behalf of such person if (i) his acts were
committed in bad faith or were the result of active and deliberate dishonesty
and were material to such action or proceeding, or (ii) he personally gained in
fact a financial profit or other advantage to which he was not legally
entitled."
In general, Sections 721 through 726 of the New York Business
Corporation Law allow a corporation to indemnify its directors and officers,
subject to limitations substantially similar to those contained in the Company's
By-Laws as summarized above, and to advance expenses incurred by directors and
officers in defending proceedings brought against them in such capacity.
The Company maintains, at its expense, insurance policies
which insure its directors and officers (up to certain amounts per year and
subject to certain exclusions and deductions) against certain liabilities which
may be incurred in those capacities.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers or persons
controlling the Company pursuant to the foregoing provisions, the Company has
been informed that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in such Act and is
therefore unenforceable.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
An Exhibit Index, containing a list of all exhibits filed with this Registration
Statement, is included on pages 11-12.
Item 9. Undertakings
(a) Rule 415 Offering. The undersigned Registrant hereby
undertakes:
(1) To file, during any period in which it offers or sells
securities, a post-effective amendment to this Registration Statement
to:
(i) include any Prospectus required by Section
10(a)(3) of the Securities Act, unless the information
6
<PAGE>
is contained in periodic reports filed by the Registrant
pursuant to section 13 or section 15(d) of the Exchange Act
that are incorporated by reference in the Registration
Statement;
(ii) reflect in the Prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement, unless the information is contained in periodic
reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement;
(iii) include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To file a post-effective amendment to remove from
registration any of the securities being registered which remain unsold
at the termination of the offering.
(b) Subsequent Exchange Act Documents. The undersigned
Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the Registrant's annual report pursuant
to section 13(a) or section 15(d) of the Exchange Act (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to section
15(d) of the Exchange Act) that is incorporated by reference in the Registration
Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Indemnification. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the
7
<PAGE>
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
8
<PAGE>
SIGNATURES
----------
The Registrant. Pursuant to the requirements of the Securities
Act of 1933, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Phoenix, State of Arizona on the 3rd
day of December, 1997.
PHELPS DODGE CORPORATION
By: /s/ Thomas M. St. Clair
-------------------------------
Thomas M. St. Clair
Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signatures Title Date
- ---------- ----- ----
/s/ Douglas C. Yearley Chairman of the December 3, 1997
- ------------------------ Board, President,
Douglas C. Yearley Chief Executive
Officer and Director
(Principal Executive
Officer)
/s/ Thomas M. St. Clair Senior Vice December 3, 1997
- ------------------------
Thomas M. St. Clair President and Chief
Financial Officer
(Principal Financial
Officer)
/s/ Gregory W. Stevens Vice President and December 3, 1997
- ------------------------ Controller
Gregory W. Stevens (Principal
Accounting Officer)
9
<PAGE>
/s/ Robert N. Burt * Director December 9, 1997
- ------------------------
Robert N. Burt
/s/ Paul W. Douglas * Director December 9, 1997
- ------------------------
Paul W. Douglas
/s/ William A. Franke * Director December 9, 1997
- ------------------------
William A. Franke
/s/ Paul Hazen * Director December 9, 1997
- ------------------------
Paul Hazen
/s/ Marie L. Knowles * Director December 9, 1997
- ------------------------
Marie L. Knowles
/s/ Robert D. Krebs * Director December 9, 1997
- ------------------------
Robert D. Krebs
/s/Southwood J. Morcott* Director December 9, 1997
- ------------------------
Southwood J. Morcott
/s/ Gordon R. Parker * Director December 9, 1997
- ----------------------
Gordon R. Parker
/s/ J. Steven Whisler * Director December 9, 1997
- ----------------------
* By:/s/ Robert C. Swan
- ------------------------
Robert C. Swan
Attorney-in-Fact
10
<PAGE>
INDEX TO EXHIBITS
Exhibit No. Description of Exhibit
- ----------- ----------------------
4.1 Complete composite copy of the Restated Certificate of
Incorporation of the Company as amended (incorporated
by reference to Exhibit 3.1 to the Company's 1992 Form
10-K (SEC File No. 1-82)), as further amended by
Certificate of Amendment to such Restated Certificate
of Incorporation, effective June 19, 1997
(incorporated by reference to Exhibit 3.1 to the
Company's Form 10-Q for the quarter ended June 30,
1997 (SEC File No. 1-82)).
4.2 By-Laws of the Company, as amended, effective May 7,
1997 (incorporated by reference to Exhibit 3.2 to the
Company's Form 10-Q for the quarter ended June 30,
1997 (SEC File No. 1-82)).
4.3 Rights Agreement, dated as of July 29, 1988 and
Amended and Restated as of December 6, 1989, between
the Company and Chase Bank (formerly Chemical Bank),
which includes the form of Certificate of Amendment
setting forth the terms of the Junior Participating
Cumulative Preferred Shares, par value $1.00 per
share, as Exhibit A, the form of Right Certificate as
Exhibit B and the Summary of Rights to Purchase
Preferred Shares as Exhibit C (incorporated by
reference to Exhibit 1 to the Company's Current Report
on Form 8-K filed on December 7, 1989 (SEC File No.
1-82)).
5 Opinion of Debevoise & Plimpton (filed herewith).
15 Letter from Price Waterhouse LLP regarding unaudited
interim financial information (filed herewith)
23.1 Consent of Price Waterhouse LLP (filed herewith).
23.2 Consent of Debevoise & Plimpton (included in Exhibit
5).
24 Powers of Attorney (filed herewith)
11
<PAGE>
99.1 Deferred Compensation Plan for the Directors of Phelps
Dodge Corporation, as amended and restated as of June
25, 1997, effective September 30, 1997 (incorporated
by reference to Exhibit 10.5 to the Company's Form
10-Q for the quarter ended June 30, 1997 (SEC File No.
1-82)).
99.2 Phelps Dodge Corporation Directors Stock Unit Plan, as
amended and restated effective January 1, 1998 (filed
herewith).
12
Exhibit 5
[Letterhead of Debevoise & Plimpton]
December 15, 1997
Phelps Dodge Corporation
2600 North Central Avenue
Phoenix, AZ 85004
Dear Sirs:
We have acted as counsel to Phelps Dodge Corporation, a New
York corporation (the "Company"), in connection with the filing by the Company
of a Registration Statement on Form S-8 (the "Registration Statement") relating
to the registration of 100,000 shares of Common Stock relating to the Deferred
Compensation Plan for the Directors of Phelps Dodge Corporation and the Phelps
Dodge Corporation Amended and Restated Directors Stock Unit Plan (the "Plans").
We have examined the originals, or copies certified or
otherwise identified to our satisfaction, of the Plans and such other corporate
records, documents, certificates or other instruments as in our judgment are
necessary or appropriate to enable us to render the opinion set forth below. In
rendering such opinion, we have assumed that grants of Common Stock subject to
restrictions on transferability pursuant to the Plans will be made only for past
services to the Company having an aggregate value not less than the aggregate
par value of the Common Stock so granted.
Based on the foregoing, we are of the opinion that authorized
but not previously issued shares of Common Stock which may be issued under the
Plans have been duly authorized and when issued in accordance with the terms of
the Plans will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit
to the Company's Registration Statement. In giving such consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933 or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
/s/ Debevoise & Plimpton
Exhibit 15
[Letterhead of Price Waterhouse LLP]
December 15, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are aware that Phelps Dodge Corporation has incorporated by reference our
reports dated April 9, 1997, July 10, 1997 and October 9, 1997 (issued pursuant
to the provisions of Statement on Auditing Standards No. 71) in its Registration
Statement on Form S-8 to be filed on or about December 15, 1997. We are also
aware of our responsibilities under the Securities Act of 1933.
Yours very truly,
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Exhibit 23.1
Consent of Independent Accountants
----------------------------------
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 15, 1997, appearing on page 56
of Phelps Dodge Corporation's Annual Report on Form 10-K for the year ended
December 31, 1996. We also consent to the incorporation by reference of our
report on the Financial Statement Schedule, which appears on page 54 of such
Annual Report on Form 10-K.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Phoenix, Arizona
December 15, 1997
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Deferred Compensation Plan
for the Directors of Phelps Dodge Corporation
and the Phelps Dodge Corporation
Amended and Restated Directors Stock Unit Plan
----------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and Robert C. Swan and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Phelps Dodge Corporation
(the "Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of 100,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Deferred Compensation Plan for Directors of Phelps Dodge Corporation and the
Phelps Dodge Corporation Amended and Restated Directors Stock Unit Plan and any
and all amendments (including post-effective amendments) to the Registration
Statement, and file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 (the "Act"), and any and all other
instruments which either of said attorneys-in-fact and agents deems necessary or
advisable to enable the Company to comply with the Act, the rules, regulations
and requirements of the SEC in respect thereof, and the securities or Blue Sky
laws of any State or other governmental subdivision, giving and granting to each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he or she might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his or her said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand on this 26th day of November, 1997.
/s/ Douglas C. Yearley
----------------------
Douglas C. Yearley
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Deferred Compensation Plan
for the Directors of Phelps Dodge Corporation
and the Phelps Dodge Corporation
Amended and Restated Directors Stock Unit Plan
----------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and Robert C. Swan and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Phelps Dodge Corporation
(the "Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of 100,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Deferred Compensation Plan for Directors of Phelps Dodge Corporation and the
Phelps Dodge Corporation Amended and Restated Directors Stock Unit Plan and any
and all amendments (including post-effective amendments) to the Registration
Statement, and file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 (the "Act"), and any and all other
instruments which either of said attorneys-in-fact and agents deems necessary or
advisable to enable the Company to comply with the Act, the rules, regulations
and requirements of the SEC in respect thereof, and the securities or Blue Sky
laws of any State or other governmental subdivision, giving and granting to each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he or she might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his or her said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand on this 26th day of November, 1997.
/s/ Thomas M. St. Clair
-----------------------
Thomas M. St. Clair
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Deferred Compensation Plan
for the Directors of Phelps Dodge Corporation
and the Phelps Dodge Corporation
Amended and Restated Directors Stock Unit Plan
----------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and Robert C. Swan and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Phelps Dodge Corporation
(the "Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of 100,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Deferred Compensation Plan for Directors of Phelps Dodge Corporation and the
Phelps Dodge Corporation Amended and Restated Directors Stock Unit Plan and any
and all amendments (including post-effective amendments) to the Registration
Statement, and file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 (the "Act"), and any and all other
instruments which either of said attorneys-in-fact and agents deems necessary or
advisable to enable the Company to comply with the Act, the rules, regulations
and requirements of the SEC in respect thereof, and the securities or Blue Sky
laws of any State or other governmental subdivision, giving and granting to each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he or she might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his or her said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand on this 3rd day of December, 1997.
/s/ Gregory W. Stevens
----------------------
Gregory W. Stevens
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Deferred Compensation Plan
for the Directors of Phelps Dodge Corporation
and the Phelps Dodge Corporation
Amended and Restated Directors Stock Unit Plan
----------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and Robert C. Swan and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Phelps Dodge Corporation
(the "Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of 100,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Deferred Compensation Plan for Directors of Phelps Dodge Corporation and the
Phelps Dodge Corporation Amended and Restated Directors Stock Unit Plan and any
and all amendments (including post-effective amendments) to the Registration
Statement, and file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 (the "Act"), and any and all other
instruments which either of said attorneys-in-fact and agents deems necessary or
advisable to enable the Company to comply with the Act, the rules, regulations
and requirements of the SEC in respect thereof, and the securities or Blue Sky
laws of any State or other governmental subdivision, giving and granting to each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he or she might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his or her said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand on this 3rd day of December, 1997.
/s/ Robert N. Burt
------------------
Robert N. Burt
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Deferred Compensation Plan
for the Directors of Phelps Dodge Corporation
and the Phelps Dodge Corporation
Amended and Restated Directors Stock Unit Plan
----------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and Robert C. Swan and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Phelps Dodge Corporation
(the "Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of 100,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Deferred Compensation Plan for Directors of Phelps Dodge Corporation and the
Phelps Dodge Corporation Amended and Restated Directors Stock Unit Plan and any
and all amendments (including post-effective amendments) to the Registration
Statement, and file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 (the "Act"), and any and all other
instruments which either of said attorneys-in-fact and agents deems necessary or
advisable to enable the Company to comply with the Act, the rules, regulations
and requirements of the SEC in respect thereof, and the securities or Blue Sky
laws of any State or other governmental subdivision, giving and granting to each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he or she might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his or her said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand on this 3rd day of December, 1997.
/s/ Paul W. Douglas
-------------------
Paul W. Douglas
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Deferred Compensation Plan
for the Directors of Phelps Dodge Corporation
and the Phelps Dodge Corporation
Amended and Restated Directors Stock Unit Plan
----------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and Robert C. Swan and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Phelps Dodge Corporation
(the "Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of 100,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Deferred Compensation Plan for Directors of Phelps Dodge Corporation and the
Phelps Dodge Corporation Amended and Restated Directors Stock Unit Plan and any
and all amendments (including post-effective amendments) to the Registration
Statement, and file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 (the "Act"), and any and all other
instruments which either of said attorneys-in-fact and agents deems necessary or
advisable to enable the Company to comply with the Act, the rules, regulations
and requirements of the SEC in respect thereof, and the securities or Blue Sky
laws of any State or other governmental subdivision, giving and granting to each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he or she might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his or her said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand on this 3rd day of December, 1997.
/s/ William A. Franke
---------------------
William A. Franke
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Deferred Compensation Plan
for the Directors of Phelps Dodge Corporation
and the Phelps Dodge Corporation
Amended and Restated Directors Stock Unit Plan
----------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and Robert C. Swan and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Phelps Dodge Corporation
(the "Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of 100,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Deferred Compensation Plan for Directors of Phelps Dodge Corporation and the
Phelps Dodge Corporation Amended and Restated Directors Stock Unit Plan and any
and all amendments (including post-effective amendments) to the Registration
Statement, and file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 (the "Act"), and any and all other
instruments which either of said attorneys-in-fact and agents deems necessary or
advisable to enable the Company to comply with the Act, the rules, regulations
and requirements of the SEC in respect thereof, and the securities or Blue Sky
laws of any State or other governmental subdivision, giving and granting to each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he or she might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his or her said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand on this 3rd day of December, 1997.
/s/ Paul Hazen
--------------
Paul Hazen
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Deferred Compensation Plan
for the Directors of Phelps Dodge Corporation
and the Phelps Dodge Corporation
Amended and Restated Directors Stock Unit Plan
----------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and Robert C. Swan and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Phelps Dodge Corporation
(the "Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of 100,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Deferred Compensation Plan for Directors of Phelps Dodge Corporation and the
Phelps Dodge Corporation Amended and Restated Directors Stock Unit Plan and any
and all amendments (including post-effective amendments) to the Registration
Statement, and file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 (the "Act"), and any and all other
instruments which either of said attorneys-in-fact and agents deems necessary or
advisable to enable the Company to comply with the Act, the rules, regulations
and requirements of the SEC in respect thereof, and the securities or Blue Sky
laws of any State or other governmental subdivision, giving and granting to each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he or she might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his or her said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand on this 3rd day of December, 1997.
/s/ Marie L. Knowles
--------------------
Marie L. Knowles
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Deferred Compensation Plan
for the Directors of Phelps Dodge Corporation
and the Phelps Dodge Corporation
Amended and Restated Directors Stock Unit Plan
----------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and Robert C. Swan and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Phelps Dodge Corporation
(the "Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of 100,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Deferred Compensation Plan for Directors of Phelps Dodge Corporation and the
Phelps Dodge Corporation Amended and Restated Directors Stock Unit Plan and any
and all amendments (including post-effective amendments) to the Registration
Statement, and file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 (the "Act"), and any and all other
instruments which either of said attorneys-in-fact and agents deems necessary or
advisable to enable the Company to comply with the Act, the rules, regulations
and requirements of the SEC in respect thereof, and the securities or Blue Sky
laws of any State or other governmental subdivision, giving and granting to each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he or she might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his or her said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand on this 3rd day of December, 1997.
/s/ Robert D. Krebs
-------------------
Robert D. Krebs
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Deferred Compensation Plan
for the Directors of Phelps Dodge Corporation
and the Phelps Dodge Corporation
Amended and Restated Directors Stock Unit Plan
----------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and Robert C. Swan and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Phelps Dodge Corporation
(the "Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of 100,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Deferred Compensation Plan for Directors of Phelps Dodge Corporation and the
Phelps Dodge Corporation Amended and Restated Directors Stock Unit Plan and any
and all amendments (including post-effective amendments) to the Registration
Statement, and file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 (the "Act"), and any and all other
instruments which either of said attorneys-in-fact and agents deems necessary or
advisable to enable the Company to comply with the Act, the rules, regulations
and requirements of the SEC in respect thereof, and the securities or Blue Sky
laws of any State or other governmental subdivision, giving and granting to each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he or she might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his or her said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand on this 2nd day of December, 1997.
/s/ Southwood J. Morcott
------------------------
Southwood J. Morcott
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Deferred Compensation Plan
for the Directors of Phelps Dodge Corporation
and the Phelps Dodge Corporation
Amended and Restated Directors Stock Unit Plan
----------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and Robert C. Swan and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Phelps Dodge Corporation
(the "Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of 100,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Deferred Compensation Plan for Directors of Phelps Dodge Corporation and the
Phelps Dodge Corporation Amended and Restated Directors Stock Unit Plan and any
and all amendments (including post-effective amendments) to the Registration
Statement, and file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 (the "Act"), and any and all other
instruments which either of said attorneys-in-fact and agents deems necessary or
advisable to enable the Company to comply with the Act, the rules, regulations
and requirements of the SEC in respect thereof, and the securities or Blue Sky
laws of any State or other governmental subdivision, giving and granting to each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he or she might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his or her said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand on this 1st day of December, 1997.
/s/ Gordon R. Parker
--------------------
Gordon R. Parker
<PAGE>
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Deferred Compensation Plan
for the Directors of Phelps Dodge Corporation
and the Phelps Dodge Corporation
Amended and Restated Directors Stock Unit Plan
----------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and Robert C. Swan and each of them,
with full power to act without the other, his or her true and lawful
attorney-in-fact and agent, in his or her name, place and stead to execute on
his or her behalf, as an officer and/or director of Phelps Dodge Corporation
(the "Company"), the Registration Statement of the Company on Form S-8 (the
"Registration Statement") for the registration of 100,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Deferred Compensation Plan for Directors of Phelps Dodge Corporation and the
Phelps Dodge Corporation Amended and Restated Directors Stock Unit Plan and any
and all amendments (including post-effective amendments) to the Registration
Statement, and file the same with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission (the "SEC")
pursuant to the Securities Act of 1933 (the "Act"), and any and all other
instruments which either of said attorneys-in-fact and agents deems necessary or
advisable to enable the Company to comply with the Act, the rules, regulations
and requirements of the SEC in respect thereof, and the securities or Blue Sky
laws of any State or other governmental subdivision, giving and granting to each
of said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing whatsoever necessary or appropriate to be done in
and about the premises as fully to all intents as he or she might or could do if
personally present at the doing thereof, with full power of substitution and
resubstitution, hereby ratifying and confirming all that his or her said
attorneys-in-fact and agents or substitutes may or shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has hereunto set his or
her hand on this 3rd day of December, 1997.
/s/ J. Steven Whisler
---------------------
J. Steven Whisler
Exhibit 99.2
PHELPS DODGE CORPORATION
DIRECTORS STOCK UNIT PLAN
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Purpose........................................................1
Section 2. Definitions....................................................2
Section 3. Units..........................................................4
Section 4. Vesting and Forfeitures........................................6
Section 5. Participation Agreement........................................6
Section 6. Payment of Benefits............................................8
Section 7. Administration................................................11
Section 8. Amendment and Termination.....................................12
Section 9. Effective Date of the Plan....................................12
Section 10. Governing Law................................................12
Section 11. General Provisions...........................................12
i
<PAGE>
Phelps Dodge Corporation
Directors Stock Unit Plan
-------------------------
Section I. Purpose
- ---------- -------
The Phelps Dodge Corporation 1997 Directors Stock Unit Plan (the
"Plan") was initially adopted effective January 1, 1997, in order to attract,
retain and motivate the best qualified directors for the benefit of Phelps Dodge
Corporation (the "Corporation") and its shareholders and to provide such
directors an economic interest in the Corporation, thereby enhancing a long-term
mutuality of interest between such directors and shareholders.
In order to increase the mutuality of interest between directors and
shareholders, the Retirement Plan for Directors of Phelps Dodge Corporation (the
"Retirement Plan") is being terminated and benefits accrued by Eligible
Directors under the Retirement Plan are being canceled in exchange for the award
of Units under this Plan. Additionally, as described herein, benefits under this
Plan are being enhanced in order to replace the benefits that Eligible Directors
would have accrued under the Retirement Plan.
By the adoption of this document, the Plan is being amended and
restated in order to reflect the replacement of the Retirement Plan by the
provisions of this Plan. By the adoption of this amended and restated Plan
document, the name of the Plan is being changed to the "Phelps Dodge Corporation
Directors Stock Unit Plan."
1
<PAGE>
Section II. Definitions
- ----------- -----------
When used in this Plan, the following terms shall have the
meanings set forth in this Section unless the context clearly indicates
otherwise:
"Account" shall mean the accounts which may be maintained by
the Committee to reflect the number of Units awarded to each Eligible Director
under the Plan.
"Board" shall mean the Board of Directors of the Corporation.
"Change in Control" shall mean the occurrence of any of the
following:
(a) any "person" or "group" of persons (as such terms are used
in Section 13 of the Securities Exchange Act of 1934, as amended from time to
time (the "Exchange Act")), other than the Corporation or any employee benefit
plan sponsored by the Corporation, becoming the "beneficial owner" (as such term
is used in Section 13 of the Exchange Act) of 25% or more of the total number of
the Corporation's Common Shares at the time outstanding; or
(b) the approval, by the vote of the Corporation's
stockholders holding at least 50% (or such greater percentage as may be required
by the Certificate of Incorporation or By-Laws of the Corporation or by law) of
the voting stock of the Corporation, of any merger, consolidation, sale of
assets, liquidation or reorganization in which the Corporation will not survive
as a publicly owned corporation; or
(c) the individuals who, at the beginning of any period of two
years or less, constituted the Board ceasing, for any reason, to constitute at
least a majority thereof, unless the election or nomination for election of each
new Director was approved by the vote of at least two-thirds of the Directors
then still in office who were Directors at the beginning of such period.
2
<PAGE>
"Committee" shall mean the Committee on Directors of the
Board.
"Common Shares" shall mean the shares of common stock of the
Corporation.
"Corporation" shall mean Phelps Dodge Corporation.
"Director" shall mean any member of the Board regardless of
whether an Eligible Director.
"Disability" shall mean the inability of an Eligible Director
to perform his or her duties for a period of at least 180 days due to mental or
physical infirmity, as determined by the Corporation's policies.
"Eligible Director" shall mean a Director who is not an
employee of the Corporation or any Subsidiary.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Fair Market Value" shall mean the average of high and low
prices of a Common Share on the New York Stock Exchange on the date of
determination or, if no sale of Common Shares is recorded on such date, then on
the next preceding day on which there was such a sale.
"Grant" shall mean an award of Units under Section 3.
"Gross Cause" shall include fraud, misappropriation of, or
other intentional misconduct damaging to, the property or business of the
Corporation or any of its subsidiaries or affiliates, or the commission of a
crime.
"Retirement Plan" shall mean the Retirement Plan for Directors
of Phelps Dodge Corporation.
"Subsidiary" shall mean any entity of which the Corporation
possesses directly or indirectly fifty percent (50%) or more of the total
combined voting power of all classes of stock of such entity.
3
<PAGE>
"Termination" shall mean any termination (whether voluntary or
involuntary) of an Eligible Director's service as a Director, other than (1) a
termination caused by the Eligible Director's death or (2) a termination that
the Committee determines to have resulted from Gross Cause.
"Unit" shall mean a contractual obligation of the Corporation
to deliver a Common Share or pay cash based on the Fair Market Value of a Common
Share to an Eligible Director or the beneficiary or estate of such Eligible
Director as provided herein.
Section III. Units
- ------------ -----
A. Unit Awards. Subject to the requirements of Section 5(a),
on each January 1 during the term of the Plan, each Eligible Director serving as
a Director on such date who has been a Director continuously since the prior
November 15 shall be awarded 450 Units.
B. Special Award of Converted Retirement Plan Benefits.
Subject to the requirements of Section 5(a), the present value of each Eligible
Director's accrued benefit under the Retirement Plan, as determined by the
Corporation (the "Accrued Benefit"), shall be converted to Units under this
Plan. The number of Units awarded to each Eligible Director pursuant to this
Section shall be determined by dividing the Eligible Director's Accrued Benefit
by the Fair Market Value on December 31, 1997. The number of Units so determined
shall be credited to the Eligible Director's Account effective January 1, 1998.
After the conversion, Eligible Directors shall not be entitled to any benefits
under the Retirement Plan.
C. Dividend Equivalents. Whenever a dividend other than a
dividend payable in the form of the Corporation's Common Shares is declared with
respect to the Corporation's Common Shares, the number of Units credited
4
<PAGE>
to an Eligible Director shall be increased by the number of Units determined by
dividing (i) the product of (A) the total number of Units standing to such
Eligible Director's credit on the related dividend record date and (B) the
amount of any cash dividend declared by the Corporation on a Common Share (or,
in the case of any dividend distributable in property other than Common Shares,
the per share value of such dividend, as determined by the Corporation for
purposes of income tax reporting) by (ii) the Fair Market Value on the related
dividend payment date. In the case of any dividend declared on the Corporation's
Common Shares which is payable in Common Shares, each Eligible Director shall be
credited with an additional number of Units equal to the product of (i) the
total number of Units standing to such Eligible Director's credit on the related
dividend record date and (ii) the number of Common Shares (including any
fraction thereof) distributable as a dividend on a Common Share.
D. Adjustment for Corporate Transactions. In the event that
any recapitalization, reorganization, merger, consolidation, split-up, spin-off,
combination, exchange of shares, warrants or rights offering to purchase Common
Shares at a price substantially below Fair Market Value, or other similar event
affects the Common Shares such that an adjustment is required to preserve, or to
prevent enlargement of, the benefits or potential benefits made available under
the Plan, then the Board shall adjust the number and kind of shares which
thereafter may be awarded under the Plan and the number of Units to be granted
annually to each Eligible Director under the Plan.
Section IV. Vesting and Forfeitures
- ----------- -----------------------
A. Vesting. All of the Units awarded each year pursuant to Section 3(a)
(450 Units) shall be vested as of the date of Grant. Units awarded pursuant to
Section 3(b) shall be vested as January 1, 1998.
5
<PAGE>
B. Forfeitures. Notwithstanding Section 4(a) to the contrary, if the
Committee determines that an Eligible Director's termination of service as a
Director is due to Gross Cause, all Units credited to the Eligible Director's
Account shall be forfeited, and the Eligible Director will not be entitled to
receive any benefits under this Plan.
Section V. Participation Agreement
- ---------- -----------------------
A. Participation Agreement. Effective January 1, 1998, each
Eligible Director, as a condition of receiving a Grant, must enter into a
Participation Agreement in such form and at such time as the Committee shall
require. The Participation Agreement shall indicate the manner in which
distributions are to be made to the Eligible Director, and, if the Eligible
Director elects installment payments, the period over which, and the frequency
with which, such installments should be made. In the Participation Agreement the
Eligible Director may elect to postpone the payments to which the Eligible
Director is entitled until the later of a specified date or the Eligible
Director's Termination. Despite any such election, the payment must be made (or
commence if installments are elected) by the fifth anniversary of the Eligible
Director's Termination. The Participation Agreement also may set forth such
other information as the Committee may require. In the case of Eligible
Directors who are participating in this Plan on the date of adoption of this
amended and restated Plan document, the Participation Agreement must be executed
and delivered to the Committee on or before December 31, 1997. In the case of
any other Eligible Director, the Participation Agreement must be executed and
delivered to the Committee before the first date as of which the Eligible
Director is scheduled to receive a Grant pursuant to Sections 3(a).
6
<PAGE>
B. Revised Participation Agreements. A Participant may file a
new Participation Agreement in order to change an election made in a previously
filed Participation Agreement. If the new Participation Agreement changes the
method of payment from installments to lump sum or vice versa, or if the new
Participation Agreement changes the time of distribution, the new election will
only be honored if at least one (1) full calendar year elapses between (a) the
date as of which such new Participation Agreement is filed and (b) the date as
of which such distribution will commence under such election. The foregoing
timing restrictions do not apply to a Participant's election to receive cash or
Common Shares.
Section VI. Payment of Benefits
- ----------- -------------------
A. Payment Upon Termination. Except as provided in Sections
6(b) or 6(c) below, upon Termination, each Eligible Director shall be entitled
to a distribution of the vested Units credited to the Eligible Director's
Account in the manner specified in the Eligible Director's initial Participation
Agreement or in any revised Participation Agreement that has been in effect for
the requisite period of time specified in Section 5(b). Distribution of an
Eligible Director's Accounts pursuant to this Section may be made by means of
any one of the following methods:
1. Lump Sum Cash Payment. A single lump sum cash
payment in an amount equal to (i) the sum of the number of vested Units
credited to the Eligible Director's Account on the effective date of
the distribution multiplied by (ii) the Fair Market Value on such date.
Such lump sum cash payment shall be made to the Eligible Director
within a reasonable period of time following the effective date of the
distribution.
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2. Lump Sum Payment of Common Shares. A single
delivery of a number of Common Shares equal to the number of vested
Units credited to the Eligible Director's Account at the effective date
of the distribution. Any fractional Common Shares will be settled in
cash based on the Fair Market Value on the effective date of the
distribution. Such Common Shares (and any cash in lieu of fractional
Common Shares) shall be delivered to the Eligible Director within a
reasonable period of time following the effective date of the
distribution.
3. Cash Installment Payments. By distribution in
substantially equal monthly, quarterly, semiannual or annual cash
installments over a fixed period selected by the Eligible Director but
not in excess of ten (10) years. The amount of each installment shall
equal (i) the number of vested Units credited to the Eligible
Director's Account as of the effective date of the installment payment
multiplied by (ii) the Fair Market Value on such date and divided by
(iii) the remaining number of payments to be made. The first
installment payment shall be made as soon as possible after the
effective date of the installment payment and all subsequent
installment payments shall be made at the regular interval elected by
the Eligible Director in the Eligible Director's Participation
Agreement.
4. Common Shares Installment Payments. By
distribution in substantially equal monthly, quarterly, semiannual or
annual installments of Common Shares over a fixed period selected by
the Eligible Director but not in excess of ten (10) years. The number
of Common Shares to be distributed at each installment shall equal (i)
the number of vested Units credited to the Eligible Director's Account
as of
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the effective date of the installment payment divided by (ii) the
remaining number of payments to be made. Fractional Common Shares will
be rounded up to the nearest whole Common Share. However, if the final
installment requires the distribution of a fractional Common Share, the
fractional Common Share will be settled in cash based on the Fair
Market Value on the date immediately preceding the date of
distribution. The first installment payment shall be made as soon as
possible after the effective date of the installment payment and all
subsequent installment payments shall be made at the regular interval
elected by the Eligible Director in the Eligible Director's
Participation Agreement.
The effective date of any lump sum payment and the effective date of any first
installment payment shall be the Eligible Director's date of Termination unless
the Eligible Director has elected in the Eligible Director's Participation
Agreement to defer the distribution in accordance with Section 5(a). Unless an
Eligible Director has affirmatively elected to receive payments in any of the
forms permitted by paragraphs (2) through (4), above, the Eligible Director's
Accounts shall be distributed in a lump sum cash payment pursuant to paragraph
(1).
B. Payment Upon Death. In the event of the death of an
Eligible Director prior to full distribution of the Eligible Director's vested
Account, the Corporation, regardless of the elections made in the Eligible
Director's most recent Participation Agreement, shall pay to the beneficiary
designated by the Eligible Director on a form provided by the Corporation, or,
in the absence of such designation, to the Eligible Director's estate, cash in
an aggregate amount equal to the product of (i) the number of Units credited to
such Eligible Director's Account on the date of the Eligible Director's death
multiplied by (ii) the Fair Market Value on the date of the Eligible Director's
death.
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C. Change in Control. Notwithstanding the foregoing, upon the
occurrence of a Change in Control, and regardless of the elections made in the
Eligible Director's most recent Participation Agreement, the Corporation shall
pay an Eligible Director (or, in the event of the death of an Eligible Director
following a Change in Control, the beneficiary or estate determined pursuant to
(b) above), not later than 30 days after the Change in Control occurs, cash in
an aggregate amount equal to the product of (i) the number of Units credited to
such Eligible Director's Account at the time of the Change in Control multiplied
by (ii) the Fair Market Value on the date of the Change in Control.
D. Satisfaction of Corporation's Obligation. Upon the delivery
of a Common Share (or the payment of cash with respect to a whole or fractional
Common Share) pursuant to the Plan, the corresponding Unit (or fraction thereof)
shall be canceled and be of no further force or effect. Each Eligible Director's
Account will be adjusted, as payments are made to the Eligible Director, to
reflect the cancellation of Units.
Section VII. Administration
- ------------ --------------
The Plan shall be administered by the Committee. Subject to
the provisions of the Plan, the Committee shall have plenary authority to
interpret the Plan, to prescribe, amend and rescind rules and regulations
relating to it, and to determine the terms and provisions of the awards made
pursuant to the Plan and to make all other determinations necessary or advisable
for the administration of the Plan; provided, however, that the Plan shall be
administered such that the transactions contemplated hereunder will continue to
qualify for the exemptive relief available under Rule 16b-3 of the Exchange Act.
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Section VIII. Amendment and Termination
- ------------- -------------------------
The Board may suspend, revise, amend or discontinue the Plan
at any time; provided, however, that no such action may materially and adversely
affect any rights of an Eligible Director under any Grant made pursuant to the
Plan without such Eligible Director's consent. Unless the Board otherwise
specifies at the time of such termination, a termination of the Plan will not
result in a distribution with respect to the Units then credited to an Eligible
Director under the Plan.
Section IX. Effective Date of the Plan
- ----------- --------------------------
The Plan, as amended and restated, shall be effective as of
January 1, 1998 and shall terminate as of December 31, 2006 unless extended
by the Board or terminated at an earlier date pursuant to Section 8 of the Plan.
Section X. Governing Law
- ---------- -------------
The Plan shall be construed in all respects under the laws of
the State of New York.
Section XI. General Provisions
- ----------- ------------------
A. Nontransferable Grants. Grants made under the Plan may not
be assigned or transferred, in whole or in part, either directly or by operation
of law (except in the event of an Eligible Director's death by will or
applicable laws of descent and distribution), including, but not by way of
limitation, by execution, levy, garnishment, attachment, pledge, bankruptcy or
in any other manner, and no such right or interest of any Eligible Director in
the Plan shall be subject to any obligation or liability of such Eligible
Director.
B. No Right to Serve as a Director. The Plan shall not impose
any obligation on the Corporation to retain any Eligible Director as a
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Director nor shall it impose any obligation on the part of any Eligible Director
to remain as a Director of the Corporation.
C. No Right to Particular Assets. Nothing contained in the
Plan and no action taken pursuant to the Plan shall create or be construed to
create a trust of any kind or any fiduciary relationship between the Corporation
and any Eligible Director, the executor, administrator or other personal
representative or designated beneficiary of such Eligible Director, or any other
persons. Any reserves that may be established by the Corporation in connection
with Units granted under the Plan shall continue to be treated as the assets of
the Corporation for Federal income tax purposes and remain subject to the claims
of the Corporation's creditors. To the extent that any Eligible Director or the
executor, administrator, or other personal representative of such Eligible
Director acquires a right to receive any payment from the Corporation pursuant
to the Plan, such right shall be no greater than the right of an unsecured
general creditor of the Corporation.
D. No Rights as Shareholder. An Eligible Director shall have
no rights as a shareholder of the Corporation with respect to any Units granted
pursuant to the Plan unless and until Common Shares are delivered pursuant to
Section 6 above.
E. Limitations on Liability. Neither the establishment of the
Plan nor any modifications thereof nor the creation of any account under the
Plan nor the payment of any benefits shall be construed as giving to any
participant or other person any legal or equitable right against the Corporation
(or any person connected therewith) except as provided by law or any Plan
provision. In no event shall the Corporation or any person connected therewith
be liable to any person for the failure of any participant or other person to be
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entitled to any particular tax consequences with respect to the Plan or any
contribution thereto or any distributions therefrom.
F. Non-Exclusivity. The adoption of the Plan by the Board
shall not be construed as creating any limitations on the power of the Board to
adopt such other compensatory arrangements as it may deem desirable.
G. No Limit on Corporate Action. The existence of the Plan and
the Units granted hereunder shall not affect in any way the right or power of
the Board or the shareholders of the Corporation to make or authorize any
adjustment, recapitalization, reorganization or other change in the
Corporation's capital structure or its business, any merger or consolidation of
the Corporation, any issue of bonds, debentures, preferred or prior preference
stocks ahead of or affecting Common Shares, the dissolution or liquidation of
the Corporation or any sale or transfer of all or part of its assets or
business, or any other corporate act or proceeding.
H. Listing of Common Shares and Related Matters. If at any
time the Board shall determine in its discretion that the listing, registration
or qualification of the Common Shares covered by the Plan upon any national
securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory body, is necessary or desirable as a
condition of, or in connection with, the delivery of Common Shares under the
Plan, no Common Shares will be delivered unless and until such listing,
registration, qualification, consent or approval shall have been effected or
obtained, or otherwise provided for, free of any conditions not acceptable to
the Board.
I. Severability of Provisions. If any provision of the Plan
shall be held invalid or unenforceable, such invalidity or unenforceability
shall not
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affect any other provisions hereof, and the Plan shall be construed and enforced
as if such provision had not been included.
J. Incapacity. Any benefit payable to or for the benefit of a
minor, an incompetent person or other person incapable of receipting therefor
shall be deemed paid when paid to such person's guardian or to the party
providing or reasonably appearing to provide for the care of such person, and
such payment shall fully discharge any liability or obligation of the Board, the
Corporation and all other parties with respect thereto.
K. Headings and Captions. The headings and captions herein are
provided for reference and convenience only, shall not be considered part of the
Plan, and shall not be employed in the construction of the Plan.
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