-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, N+pWgIxoEVMarKF6ApV0fxdNibkNwNBUq/L/+aPE7OpKpgMl3//P9dS04OPEemuU xvzWRIyiogtZBSf1Rspg6g== 0000950147-97-000873.txt : 19971216 0000950147-97-000873.hdr.sgml : 19971216 ACCESSION NUMBER: 0000950147-97-000873 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19971215 EFFECTIVENESS DATE: 19971215 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: PHELPS DODGE CORP CENTRAL INDEX KEY: 0000078066 STANDARD INDUSTRIAL CLASSIFICATION: PRIMARY SMELTING & REFINING OF NONFERROUS METALS [3330] IRS NUMBER: 131808503 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-42231 FILM NUMBER: 97738234 BUSINESS ADDRESS: STREET 1: 2600 NORTH CENTRAL AVE CITY: PHOENIX STATE: AZ ZIP: 85004 BUSINESS PHONE: 6022348100 MAIL ADDRESS: STREET 1: 2600 NORTH CENTRAL AVENUE CITY: PHOENIX STATE: AZ ZIP: 85004-3089 S-8 1 FORM S-8 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) ================================================================================ 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. 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. 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 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 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 "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 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 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 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 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 /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 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 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 EX-5 2 OPINION OF DEBEVOISE & PLIMPTON 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 EX-15 3 LETTER RE: UNAUDITED INTERIM FINANCIAL INFORMATION 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 EX-23.1 4 CONSENT OF 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 EX-24 5 POWERS OF ATTORNEY 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 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 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 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 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 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 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 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 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 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 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 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 EX-99.2 6 DIRECTORS STOCK UNIT PLAN Exhibit 99.2 PHELPS DODGE CORPORATION DIRECTORS STOCK UNIT PLAN 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 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 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 "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 "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 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 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 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. 7 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 8 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. 9 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. 10 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 11 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 12 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 13 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. 14 -----END PRIVACY-ENHANCED MESSAGE-----