As filed with the Securities and Exchange Commission on May 8, 1998
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)
PHELPS DODGE 1998 STOCK OPTION
AND RESTRICTED STOCK PLAN
(Full titles of the Plan)
S. David Colton
Vice President and General Counsel
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, 4,000,000(1) (2) $266,000,000(2) $78,470
par value
$6.25 per share
================================================================================
(1) To be offered pursuant to the Phelps Dodge 1998 Stock Option and
Restricted Stock Plan (the "Plan"). This Registration Statement also
covers 4,000,000 Rights to purchase Junior Participating Cumulative
Preferred Shares (the "Rights") which are appurtenant to and trade with
the Common Stock. Such indeterminate number of additional shares as may
be distributed by the operation of the recapitalization provisions of
the Plans is hereby also registered. Any shares of Common Stock
previously registered for delivery pursuant to Phelps Dodge
Corporation's 1987 and 1993 Stock Option and Restricted Stock Plans
which (i) are subsequently forfeited or not issued due to the
expiration, termination or cancellation of awards under such plans or
(ii) remain available for issuance under the 1993 plan, will become
available for delivery under the Plan.
(2) Computed pursuant to Rule 457(h) solely for the purpose of deter mining
the registration fee, based upon an assumed price of $66.50 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 May 5, 1998.
<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 6th
day of May, 1998.
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 May 6, 1998
- ------------------------ Board, President,
Douglas C. Yearley Chief Executive
Officer and Director
(Principal Executive
Officer)
/s/ Thomas M. St. Clair Senior Vice May 6, 1998
- ------------------------ President and Chief
Thomas M. St. Clair Financial Officer
(Principal Financial
Officer)
/s/ Gregory W. Stevens Vice President and May 6, 1998
- ------------------------ Controller
Gregory W. Stevens (Principal
Accounting Officer)
9
<PAGE>
* Director May 6, 1998
- ------------------------
Robert N. Burt
* Director May 6, 1998
- ------------------------
Paul W. Douglas
* Director May 6, 1998
- ------------------------
William A. Franke
* Director May 6, 1998
- ------------------------
Paul Hazen
* Director May 6, 1998
- ------------------------
Manuel J. Iraola
* Director May 6, 1998
- ------------------------
Marie L. Knowles
* Director May 6, 1998
- ------------------------
Robert D. Krebs
* Director May 6, 1998
- ------------------------
Southwood J. Morcott
* Director May 6, 1998
- ------------------------
Gordon R. Parker
* Director May 6, 1998
- ------------------------
J. Steven Whisler
* By: /s/ S. David Colton
-------------------
S. David Colton
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 February 5, 1998 between
the Corporation and The Chase Manhattan Bank (which
replaces the Rights Agreement dated as of July 29,
1988 as amended and restated as of December 6, 1989,
the rights issued thereunder having been redeemed by
the Corporation), 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
Corporation's Current Report on Form 8-K and in the
Corporation's Form 8- A, both filed on February 6,
1998 (SEC File No. 1-82)).
5 Opinion of Debevoise & Plimpton (filed here with).
23.1 Consent of Price Waterhouse LLP (filed here with).
11
<PAGE>
23.2 Consent of Debevoise & Plimpton (included in Exhibit
5).
24 Powers of Attorney (filed herewith)
99 Phelps Dodge 1998 Stock Option and Restricted Stock
Plan
12
Exhibit 5
[Letterhead of Debevoise & Plimpton]
May 8, 1998
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 4,000,000 shares of Common Stock relating to the Phelps
Dodge 1998 Stock Option and Restricted Stock Plan (the "Plan").
We have examined the originals, or copies certified or
otherwise identified to our satisfaction, of the Plan 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 Plan 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
Plan have been duly authorized and when issued in accordance with the terms of
the Plan 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
[Price Waterhouse LLP Letterhead]
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, 1998, except as to Note 2,
which is as of February 3, 1998, which appears on page 59 of Phelps Dodge
Corporation's Annual Report on Form 10-K for the year ended December 31, 1997.
We also consent to the incorporation by reference of our report on the Financial
Statement Schedule, which appears on page 57 of such Annual Report on Form 10-K.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Phoenix, Arizona
May 7, 1998
Exhibit 24
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 6th day of May, 1998.
/s/ Douglas C. Yearley
----------------------
Douglas C. Yearley
<PAGE>
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 6th day of May, 1998.
/s/ Thomas M. St. Clair
-----------------------
Thomas M. St. Clair
<PAGE>
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 May, 1998.
/s/ Gregory W. Stevens
----------------------
Gregory W. Stevens
<PAGE>
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 5th day of May, 1998.
/s/ Robert N. Burt
------------------
Robert N. Burt
<PAGE>
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 6th day of May, 1998.
/s/ Paul W. Douglas
-------------------
Paul W. Douglas
<PAGE>
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 6th day of May, 1998.
/s/ William A. Franke
---------------------
William A. Franke
<PAGE>
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 4th day of May, 1998.
/s/ Paul Hazen
--------------
Paul Hazen
<PAGE>
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 6th day of May, 1998.
/s/ Manuel J. Iraola
--------------------
Manuel J. Iraola
<PAGE>
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 6th day of May, 1998.
/s/ Marie L. Knowles
--------------------
Marie L. Knowles
<PAGE>
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 6th day of May, 1998.
/s/ Robert D. Krebs
-------------------
Robert D. Krebs
<PAGE>
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 6th day of May, 1998.
/s/ Southwood J. Morcott
------------------------
Southwood J. Morcott
<PAGE>
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 6th day of May, 1998.
/s/ Gordon R. Parker
--------------------
Gordon R. Parker
<PAGE>
POWER OF ATTORNEY
-----------------
Registration Statement of Phelps Dodge Corporation
Relating to the Phelps Dodge 1998 Stock Option
and Restricted Stock Plan
--------------------------------------------------
The person whose signature appears below does hereby make,
constitute and appoint Thomas M. St. Clair and S. David Colton 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 4,000,000 shares of the
Company's common stock, par value $6.25 ("Common Stock"), in connection with the
Phelps Dodge 1998 Stock Option and Restricted Stock 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 6th day of May, 1998.
/s/ J. Steven Whisler
---------------------
J. Steven Whisler
Exhibit 99
PHELPS DODGE 1998 STOCK OPTION
AND RESTRICTED STOCK PLAN
SECTION 1
PURPOSE
The purpose of the Plan is to foster and promote the long-term
financial success of the Corporation and materially increase shareholder value
by (a) motivating superior performance by means of performance-related
incentives, (b) encouraging and providing for the acquisition of an ownership
interest in the Corporation by Employees, and (c) enabling the Corporation to
attract and retain the services of an outstanding team upon whose judgment,
interest and special effort the successful conduct of its operations is largely
dependent.
SECTION 2
DEFINITIONS
2.1 Definitions. Whenever used herein, the following terms
shall have the respective meanings set forth below:
(a) "Act" shall mean the Securities Exchange Act of 1934, as
amended.
(b) "Adjustment Event" shall mean any stock dividend, stock
split or share combination of, or extraordinary cash dividend on, the
Common Shares or recapitalization of the Corporation.
(c) "Board" shall mean the Board of Directors of the
Corporation.
(d) "Common Shares" shall mean the Common Shares of the
Corporation.
(e) "Cause" shall mean (i) the willful failure by the
Participant to perform substantially his duties as an Employee (other
than due to physical or mental illness) after reasonable notice to the
Participant of such failure, (ii) serious misconduct on the part of the
Participant that is injurious to the Corporation or any Subsidiary in
any way, including, without limitation, by way of damage to any of
their respective reputations or standings in their respective
industries, (iii) the conviction of, or entrance of a plea of nolo
contendere by, the Participant with respect to a crime that constitutes
a felony or (iv) the breach by the Participant of any written covenant
or agreement with the Corporation or any Subsidiary not to disclose any
information pertaining to the Corporation or any Subsidiary or not to
compete or interfere with the Corporation or any Subsidiary.
(f) A "Change of Control" shall be deemed to have taken place
at the time (i) when any "person" or "group" of persons (as such terms
are used in
<PAGE>
Section 13 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than the Corporation or any employee benefit
plan sponsored by the Corporation, becomes the "beneficial owner" (as
such term is used in Section 13 of the Exchange Act) of 25% or more of
the total number of Common Shares at the time outstanding; (ii) of 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 (iii) when the individuals who, at
the beginning of any period of two years or less, constituted the Board
cease, 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.
(g) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(h) "Committee" shall mean a Committee of the Board, which
shall consist of two or more members. Each member of the Committee
shall be a "Non-Employee Director" within the meaning of Rule 16b-3 as
promulgated under the Act, or meet any other applicable standard for
administrators under that or any similar rule which may be in effect
from time to time. Each member of the Committee shall serve at the
pleasure of the Board.
(i) "Corporation" shall mean Phelps Dodge Corporation, a New
York corporation, and any successor thereto.
(j) "Disability" means the inability of a Participant to
perform his duties for a period of at least 180 days due to mental or
physical infirmity, as determined pursuant to the Corporation's
policies.
(k) "Employee" shall mean any executive or other key employee
of the Corporation or any Subsidiary (as determined by the Committee in
its sole discretion).
(l) "Fair Market Value" shall mean the mean of the high and
low prices of the Common Shares on the Consolidated Trading Tape on the
date of determination or, if no sale of Common Shares is recorded on
the Tape on such date, then on the next preceding day on which there
was such a sale.
(m) "Immediate Family Member" shall mean with respect to a
Participant, the Participant's spouse, ancestors (including parents and
grandparents), siblings (including half-brothers and sisters) , and
descendants (including children, grand children and great
grandchildren), as well as any entity, such as a limited liability
company, partnership or trust, in which all of the beneficial ownership
interests are held directly or indirectly by the Participant or a
natural person who is an Immediate Family Member. For purposes of this
definition, individuals who have the legal relationship described
herein through
2
<PAGE>
legal adoption and the children of the Participant's spouse or the
spouse of one of the Participant's children or grandchildren shall be
treated as Immediate Family Members.
(n) "Option" shall mean the right to purchase Common Shares at
a stated price for a specified period of time. For purposes of the
Plan, an Option may be either (i) an "Incentive Stock Option" within
the meaning of section 422 of the Code or (ii) an Option which is not
an Incentive Stock Option (a "Nonqualified Stock Option").
(o) "Participant" shall mean any Employee designated by the
Committee to receive an Option or share of Restricted Stock under the
Plan.
(p) "Plan" shall mean the 1998 Stock Option and Restricted
Stock Plan, as set forth herein and as the same may be amended from
time to time.
(q) "Predecessor Plans" shall mean the Phelps Dodge 1987 Stock
Option and Restricted Stock Plan and the Phelps Dodge 1993 Stock Option
and Restricted Stock Plan.
(r) "Restricted Period" shall mean the period during which
shares of Restricted Stock are subject to forfeiture and restrictions
on transferability pursuant to Section 6.2 of the Plan.
(s) "Restricted Stock" shall mean Stock granted to a
Participant pursuant to the Plan which is subject to forfeiture and
restrictions on transferabil ity in accordance with Section 6 of the
Plan.
(t) "Retirement" shall mean termination of a Participant's
employment on or after the Participant's normal retirement date or
early retirement under any pension or retirement plan of the
Corporation or a Subsidiary.
(u) "Subsidiary" shall mean any company in which the
Corporation and/or another Subsidiary owns 50% or more of the total
combined voting power of all classes of stock.
2.2 Gender and Number. Except when otherwise indicated by the
context, words in the masculine gender used in the Plan shall include the
feminine gender, the singular shall include the plural and the plural shall
include the singular.
SECTION 3
ADMINISTRATION
3.1 Power to Grant and Establish Terms of Awards. The
Committee shall have authority, subject to the terms of the Plan, to determine
the Employees eligible for Options and awards of Restricted Stock and those to
whom Options or Restricted Stock shall be granted, the number of Common Shares
to be covered by each Option or award of Restricted Stock, any conditions that
may be imposed upon the grant of an
3
<PAGE>
Option, the time or times at which Options or Restricted Stock shall be granted,
and the terms and provisions of the instruments by which Options or Restricted
Stock shall be evidenced; to designate Options as Incentive Stock Options or
Nonqualified Stock Options; to permit Participants to elect to defer the
issuance of Common Shares otherwise deliverable upon the exercise of an Option
on such terms and subject to such conditions as the Committee shall determine;
and to determine the period of time during which restrictions on Restricted
Stock shall remain in effect. The grant of any Option to any Employee or an
award of Restricted Stock shall neither entitle such Employee to, nor disqualify
him from, participation in any other grant of Options or award of Restricted
Stock. Notwithstanding anything else contained in the preceding sentence to the
contrary, in no event may the number of Common Shares subject to Options granted
to any single Participant within any 12-month period exceed 350,000 Common
Shares, as such number may be adjusted pursuant to Section 4.3.
3.2 Administration. Any Option grant or award of Restricted
Stock made by the Committee may be subject to such conditions, not inconsistent
with the terms of the Plan, as the Committee shall determine. The Committee, by
majority action thereof, is authorized to prescribe, amend and rescind rules and
regulations relating to the Plan, to provide for conditions deemed necessary or
advisable to protect the interests of the Corporation, to interpret the Plan and
to make all other determinations necessary or advisable for the administration
and interpretation of the Plan to carry out its provisions and purposes.
Determinations, interpretations or other actions made or taken by the Committee
pursuant to the provisions of the Plan shall be final, binding and conclusive
for all purposes and upon all persons. The Committee may consult with legal
counsel, who may be counsel to the Corporation, and shall not incur any
liability for any action taken in good faith in reliance upon the advice of
counsel. Without limiting the generality of the foregoing, the Committee may
delegate to any officer of the Corporation or any committee comprised of
officers of the Corporation the authority to take any and all actions permitted
or required to be taken by the Committee hereunder; provided that such
delegation shall not be permitted with respect to Options or other awards
granted or to be granted to any officer of the Corporation and that, to the
extent the Committee delegates authority to grant Options and other awards
hereunder, such delegation shall specify the aggregate number of Common Shares
that may be awarded pursuant to such delegation and may establish the maximum
number of Common Shares that may be subject to any award made pursuant to such
delegation and any other limitations thereon that the Committee may choose to
impose.
SECTION 4
STOCK SUBJECT TO PLAN
4.1 Number. The stock as to which Options and awards of
Restricted Stock may be granted shall be Common Shares. When Options are
exercised or Restricted Stock is awarded, the Corporation may either issue
unissued Common Shares or transfer issued shares held in its treasury. Subject
to adjustment as provided in Section 4.3 below, the total number of Common
Shares (i) which may be sold to Employees under the Plan pursuant to Options and
(ii) that may be transferred or issued as Restricted Stock pursuant to Section 6
shall not exceed the sum of (A) 4,000,000 Common Shares, (B) the number of
Common Shares received by the Corporation on or after the date this
4
<PAGE>
Plan is adopted by the Board (the "Effective Date") in payment of the exercise
price under any Option, whether issued under the Plan or a Predecessor Plan, and
(C) the number of Common Shares remaining available for issuance under the
Phelps Dodge 1993 Stock Option and Restricted Stock Plan on the Effective Date.
Notwithstanding the foregoing, the total number of Common Shares that may be
transferred or issued hereunder as awards of Restricted Stock pursuant to
Section 6 shall not exceed 400,000 Common Shares, plus that number of the Common
Shares referred to in subclause (C) of the immediately preceding sentence that,
on the Effective Date, were available for awards of restricted stock under the
Phelps Dodge 1993 Stock Option and Restricted Stock Plan. Any Option settled in
cash shall reduce the number of Common Shares under the Plan by the number of
shares that would have been issued had the Option been exercised for Common
Shares.
4.2 Canceled, Terminated or Forfeited Awards. If, after the
Effective Date, an Option granted hereunder or an Option granted under a
Predecessor Plan which is outstanding on the date hereof expires, or is
terminated, canceled or otherwise surrendered by a Participant prior to its
exercise, or if shares of Restricted Stock are re turned to the Corporation
pursuant to the terms of the Plan or if shares of Restricted Stock awarded under
a Predecessor Plan which are still restricted on the date hereof are returned to
the Corporation prior to the time at which a Participant's rights become
nonforfeitable, the Common Shares covered by such Option immediately prior to
such expiration or other termination or the Common Shares affected by such
return of Restricted Stock shall be available for future grants under the Plan.
4.3 Adjustment in Capitalization. The number and price of
Common Shares covered by each Option, the maximum number of Common Shares that
be awarded as Options under Section 3.1 and the total number of Common Shares
that may be sold, issued or transferred under the Plan shall be proportionately
adjusted to reflect, as deemed equitable and appropriate by the Committee, an
Adjustment Event. To the extent deemed equitable and appropriate by the
Committee, subject to any required action by stockholders, in any merger,
consolidation, reorganization, liquidation, dis solution, or other similar
transaction, any Option granted under the Plan shall pertain to the securities
and other property to which a holder of the number of Common Shares covered by
the Option would have been entitled to receive in connection with such event.
Any shares of stock (whether Common Shares, shares of stock
into which Common Shares are converted or for which Common Shares are exchanged
or shares of stock distributed with respect to Common Shares) or cash or other
property received with respect to any award of Restricted Stock granted under
the Plan as a result of any Adjustment Event, any distribution of property or
any merger, consolidation, reorganization, liquidation, dissolution or other
similar transaction shall, except as pro vided in Section 6.4 or as otherwise
provided by the Committee at or after the date an award of Restricted Stock is
made by the Committee, be subject to the same terms and conditions, including
restrictions on transfer, as are applicable to such shares of Restricted Stock
and any stock certificate(s) representing or evidencing any shares of stock so
received shall be legended in substantially the same manner as provided in
Section 6.5 hereof.
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SECTION 5
STOCK OPTIONS
5.1 Grant of Options. The date of grant of an Option under the
Plan will be the date on which the Option is awarded by the Committee or, if so
determined by the Committee, the date on which occurs any event the occurrence
of which is an express condition precedent to the grant of the Option. The
Committee may provide, at or after the date of grant of an Option, that, upon
the exercise of such Option and payment of the exercise price therefor with
already owned Common Shares, an addition al Option will be granted for the
number of shares so delivered in payment of the exercise price, having such
other terms and conditions not inconsistent with the Plan as the Committee may
determine, including the feature described in this second sentence of this
Section 5.1. The aggregate Fair Market Value of the Common Shares with respect
to which Incentive Stock Options are exercisable for the first time by a
Participant during any calendar year under the Plan and any other stock option
plan of the Corporation or any Subsidiary shall not exceed $100,000 or such
other amount as may be subsequently specified by the Internal Revenue Code of
1986, as amended. Options shall be evidenced by instruments in such form or
forms as the Committee may from time to time approve.
5.2 Option Price. The Option price per share shall be at or
above the Fair Market Value of the optioned shares on the day the Option is
granted (as determined under Section 5.1).
5.3 Payment. Upon exercise, the Option price shall be paid (i)
in cash, including an assignment of the right to receive cash proceeds of the
sale of Common Shares subject to the Option; (ii) in the discretion of the
Committee, in already owned Common Shares of the Corporation having a Fair
Market Value on the date of exercise equal to such Option price or in a
combination of cash and Common Shares or (iii) in accordance with such
procedures or in such other form as the Committee shall from time to time
determine.
5.4 Term and Exercise of Options. Each Incentive Stock Option
shall expire not later than the tenth anniversary of the date of its grant, and
each Nonqualified Stock Option shall expire not later than the day after the
tenth anniversary of the date of its grant. Options shall become exercisable in
three or four substantially equal annual installments commencing on the first
anniversary of the date of grant, as the Committee in its discretion shall
determine, or at such other times and upon the occurrence of such other events
or conditions as the Committee may determine at or after the grant of such
Option. Notwithstanding the foregoing, the Committee may include in any Option
instrument, initially or by amendment at any time, a provision making any
installment or installments exercisable at such earlier or later date, or upon
the occurrence of such earlier or later event, as may be specified by such
provision. Without limiting the generality of the foregoing, the Committee may
approve, pursuant to the foregoing sentence, provisions making installments
exercisable (i) upon a Participant's Retirement, (ii) six months (or such
greater or lesser period as the Committee shall in its discretion determine)
from the date on which an Option is granted if such Option is granted in
conjunction with the Participant's exercise of another Option (whether such
Option is issued under this Plan or a Predecessor Plan) with Common Shares
already owned by the Participant, (iii) not later than the date the Participant
ceases to be employed by the
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Corporation if he ceases to be so employed within two years following a Change
of Control of the Corporation, and (iv) at such time and for such period as the
Committee deems appropriate, in the event of a Change of Control. Except as may
be provided in any provision approved by the Committee pursuant to this Section
5.4, after becoming exercisable each installment shall remain exercisable until
expiration, termination or cancellation of the Option. An Option may be
exercised from time to time, in whole or in part, up to the total number of
Common Shares with respect to which it is then exer cisable.
5.5 Termination of Employment. If the Participant ceases to be
employed by the Corporation or a Subsidiary other than by reason of death,
Disability, Retirement or the Participant's termination for Cause, all Options
granted to him and exercisable on the date of his termination of employment
shall terminate on the earlier of such Options' expiration or one month (or such
greater period of time, not to exceed one year, determined by the Committee in
its sole discretion) after the day his employment ends. If the Participant
ceases to be employed on account of Disability or Retirement, all Options
granted to him and exercisable on the date of his termination of employment due
to Disability or his Retirement shall terminate on the earlier of such Options'
expiration or the fifth anniversary of the day of such termination or
Retirement. If the Participant's employment is terminated for Cause, all Options
granted to such Participant which are then outstanding shall be forfeited.
Except as otherwise determined by the Committee at or after grant of any Option,
any installment which has not become exercisable prior to the time the
Participant ceases to be employed by the Corporation or a Subsidiary other than
by reason of death shall lapse and be thenceforth unexercisable. Whether
authorized leave of absence or absence in military or governmental service may
constitute employ ment for the purposes of the Plan shall be conclusively
determined by the Committee.
5.6 Exercise upon Death of Participant. If the Participant
dies while he is employed by the Corporation or a Subsidiary, his Options may be
exercised, for the full number of Common Shares covered thereby for which such
Options were not previously exercised, by his estate, personal representative or
beneficiary who acquires the Options by will or by the laws of descent and
distribution, at any time prior to the earlier of the Options' expiration or the
fifth anniversary of the Participant's death. Such Options shall terminate upon
the earlier of such Options' expiration or the fifth anniver sary of such
Participant's death. If the Participant dies while he is no longer employed by
the Corporation, his Options may be exercised, for the number of Common Shares
as to which he could have exercised them on the date of his death, by his
estate, personal representative or beneficiary who acquires the Options by will
or by the laws of descent and distribution, at any time prior to the termination
date provided by Section 5.5.
SECTION 6
RESTRICTED STOCK
6.1 Grant of Restricted Stock. Any award made hereunder of
Restricted Stock shall be subject to the terms and conditions of the Plan and to
any other terms and conditions not inconsistent with the Plan (including, but
not limited to, requiring the Employee to pay the Corporation an amount equal to
the par value per share for each share of Restricted Stock awarded) as shall be
prescribed by the Com mittee in its sole discretion. The Committee may require
that, as a condition to any
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award of Restricted Stock under the Plan, the Employee shall have entered into
an agreement with the Corporation setting forth the terms and conditions of such
award and such other matters as the Committee, in its sole discretion, shall
have determined. As determined by the Committee, the Corporation shall either
(i) transfer or issue to each Participant to whom an award of Restricted Stock
has been made the number of shares of Restricted Stock specified by the
Committee or (ii) hold such shares of Restricted Stock for the benefit of the
Participant for the Restricted Period.
6.2 Restrictions on Transferability. Shares of Restricted
Stock may not be sold, assigned, transferred, pledged, hypothecated or otherwise
encumbered by the Participant during the Restricted Period, except as
hereinafter provided.
6.3 Rights as a Shareholder. Except for the restrictions set
forth herein and unless otherwise determined by the Committee, the Participant
shall have all the rights of a shareholder with respect to such shares of
Restricted Stock, including, but not limited to, the right to vote and the right
to receive dividends.
6.4 Lapse of Restricted Period. Unless the Committee shall
otherwise determine at or after the date an award of Restricted Stock is made to
the Participant by the Committee, the Restricted Period shall commence upon the
date of grant and shall lapse with respect to the shares of Restricted Stock on
the earlier of: (a) the third anniversary of the date of grant, in the case of
an award of restricted stock that vests based on the passage of time and the
performance of continuous service as an employee, (b) the first anniversary of
the date of grant, in the case of a restricted stock award that vests based on
the achievement of specified performance criteria or (c) the date of a Change of
Control, unless sooner terminated as otherwise provided herein. Without limiting
the generality of the foregoing, the Committee may provide for termination of
the Restricted Period upon the achievement by the Participant of performance
goals specified by the Committee at the date of grant. The determination of
whether the Participant has achieved such performance goals shall be made by the
Committee in its sole discretion.
6.5 Legend. Each certificate issued to a Participant in
respect of shares of Restricted Stock awarded under the Plan shall be registered
in the name of the Participant and shall bear the following (or similar) legend:
"The shares of stock represented by this certificate are
subject to the terms and conditions contained in the Phelps Dodge 1998
Stock Option and Restricted Stock Plan and may not be sold, pledged,
transferred, assigned, hypothecated, or otherwise encumbered in any
manner until __________________."
6.6 Death, Disability or Retirement. Unless the Committee
shall otherwise determine at the date of grant, if a Participant ceases to be
employed by the Corporation or any Subsidiary by reason of death, Disability or
Retirement, the Re stricted Period covering all shares of Restricted Stock
transferred or issued to such Participant under the Plan shall immediately
lapse.
6.7 Termination of Employment. Unless the Committee shall
other wise determine at or after the date of grant, if a Participant ceases to
be employed by the Corporation or any Subsidiary for any reason other than those
specified in Section 6.6 at
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any time prior to the date when the Restricted Period lapses, all shares of
Restricted Stock owned by such Participant shall revert back to the Corporation
upon the Participant's termination of employment. Whether authorized leave of
absence or absence in military or government service may constitute employment
for the purposes of the Plan shall be conclusively determined by the Committee.
6.8 Issuance of New Certificates. Upon the lapse of the
Restricted Period with respect to any shares of Restricted Stock, such shares
shall no longer be sub ject to the restrictions imposed under Section 6.2 and
the Corporation shall issue or have issued new share certificates without the
legend described in Section 6.5 in exchange for those previously issued.
SECTION 7
TERMINATION AND AMENDMENT OF PLAN
The Board may terminate or amend the Plan in any respect at
any time, except that without the approval of the holders of a majority of
Common Shares present and voting on the proposal at a meeting of shareholders,
the total number of shares that may be sold, issued or transferred under the
Plan may not be increased (except by adjustment pursuant to Section 4.3), the
category of persons eligible to receive Options and shares of Restricted Stock
may not be changed, the purchase price at which shares may be offered pursuant
to Options may not be reduced (except by adjustment pursuant to Section 4.3) and
the expiration date of the Plan may not be extended. No action of the Board or
shareholders, however, may, without the consent of a Participant alter or impair
his rights under any Option or award of Restricted Stock previously granted.
SECTION 8
APPLICABILITY OF PLAN TO GRANTS UNDER PREDECESSOR PLANS
The provisions of the Plan relating to Options and Restricted
Stock grants shall apply to, and govern, existing Option and restricted stock
grants made under the Predecessor Plans as if such awards were granted hereunder
(except that no such awards shall count against the share limit set forth in
Section 4.1) and such Options and re stricted stock grants shall, where
appropriate, be deemed to have been amended to pro vide any additional rights,
subject in the case of Options and restricted stock grants outstanding as of the
date of adoption of this Plan by the Board, to the right of an affected
Participant to consent to the application of such amendments to such grants as
provided in Section 7.
SECTION 9
MISCELLANEOUS PROVISIONS
9.1 Nontransferability of Awards. Unless the Committee
otherwise determines at or after grant to permit any award made hereunder to be
transferrable to the
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Immediate Family Members of a Participant, an award granted under the Plan may
not be sold, transferred, pledged, assigned or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution. All
rights with respect to awards granted to a Participant under the Plan shall be
exercisable during his lifetime only by such Participant.
9.2 Securities Law Compliance. Instruments evidencing Options
may contain such other provisions, not inconsistent with the Plan, as the
Committee deems ad visable. Common Shares received pursuant to the Plan shall be
transferable only if the proposed transfer will be in compliance with applicable
securities laws.
9.3 Tax Withholding. The Corporation shall have the power to
withhold, or require a Participant to remit to the Corporation promptly upon
notification of the amount due, an amount sufficient to satisfy Federal, state
and local withholding tax requirements on any award under the Plan, and the
Corporation may defer payment of cash or issuance or delivery of Common Shares
until such requirements are satisfied. The Committee may, in its discretion,
permit a Participant to elect, subject to such con ditions as the Committee
shall impose, (i) to have Common Shares otherwise issuable or deliverable under
the Plan withheld by the Corporation or (ii) to deliver to the Corporation
previously acquired shares of Stock, in each case, having a Fair Market Value
sufficient to satisfy all or part of the Participant's estimated total Federal,
state and local tax obligation associated with the transaction.
9.4 Term of Plan. This Plan shall be effective as of March 4,
1998, subject to approval by the holders of the Common Shares at the 1998 Annual
Meeting of Shareholders. This Plan shall expire on March 4, 2008 (except as to
Options and Re stricted Stock outstanding on that date), unless sooner
terminated pursuant to Section 7 of the Plan.
9.5 Governing Law. The Plan, and all Agreements hereunder,
shall be construed in accordance with and governed by the laws of the State of
New York.
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