EXHIBIT 10.17
1988 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
OF FREEPORT-MCMORAN INC.
ARTICLE I
PURPOSE OF THE PLAN
This 1988 Stock Option Plan for Non-Employee Directors (this "Plan")
is intended to provide a method whereby non-employee directors of
Freeport-McMoRan Inc. (the "Company"), who are making and will continue
to make substantial contributions to the success of the Company and its
Subsidiaries (as hereinafter defined), may be compensated for their
contributions and encouraged to acquire a proprietary interest in the
Company, and whereby prospective new directors may be persuaded to serve
the Company as directors, and to promote the interests of the Company and
all its stockholders. Accordingly, the Company will, on or before May 1,
1997, grant to such persons as are identified in this Plan, in the manner
hereinafter provided, options ("Options") to purchase shares of the
Common Stock of the Company ("Common Stock"), on the terms and subject to
the conditions hereinafter set forth.
ARTICLE II
DEFINITIONS
For the purposes of this Plan, the following terms shall have the
meanings indicated:
Applicable Rate: The rate, expressed as a percentage,
determined according to the following formula:
x divided by (1 - x)
in which x equals the maximum federal income tax rate applicable to
individuals in effect on the applicable Income Recognition Date;
provided, the Applicable Rate shall never exceed 100%.
Board: The Board of Directors of the Company.
Change in Control: A Change in Control shall be deemed to have
occurred if either (a) any person, or any two or more persons acting
as a group, and all affiliates of such person or persons, shall own
beneficially more than 20% of the Common Stock outstanding
(exclusive of shares held in the Company's treasury or by the
Company's Subsidiaries) pursuant to a tender offer, exchange offer
or series of purchases or other acquisitions, or any combination of
those transactions, or (b) there shall be a change in the
composition of the Board at any time within two years after any
tender offer, exchange offer, merger, consolidation, sale of assets
or contested election, or any combination of those transactions (a
"Transaction"), so that (i) the persons who were directors of the
Company immediately before the first such Transaction cease to
constitute a majority of the Board of Directors of the corporation
which shall thereafter be in control of the companies that were
parties to or otherwise involved in such Transaction, or (ii) the
number of persons who shall thereafter be directors of such
corporation shall be fewer than two-thirds of the number of
directors of the Company immediately prior to such first
Transaction. A Change in Control shall be deemed to take place upon
the first to occur of the events specified in the foregoing clauses
(a) and (b).
Code: The Internal Revenue Code of 1986, as amended from time
to time.
Committee: A committee of the Board designated by the Board to
administer the Plan and composed of not fewer than two directors,
each of whom, to the extent necessary to comply with Rule 16b-3
only, is a "non-employee director" within the meaning of Rule 16b-3
and, to the extent necessary to comply with Section 162(m) only, is
an "outside director" under Section 162(m). Until otherwise
determined by the Board, the Committee shall be the Corporate
Personnel Committee of the Board.
Election Period: The period beginning on the third business
day following a date on which the Company releases for publication
its quarterly or annual summary statements of sales and earnings,
and ending on the twelfth business day following such date.
Eligible Director: A director of the Company who is not, and
within the preceding one year has not been, an employee of the
Company or a Subsidiary or otherwise eligible for selection to
participate in any plan of the Company or any Subsidiary that
entitles the participants therein to acquire stock, stock options or
stock appreciation rights of the Company or its Subsidiaries.
Exchange Act: The Securities Exchange Act of 1934, as amended
from time to time.
Fair Market Value: The average of the high and low quoted sale
prices of a share of Common Stock or a Subsidiary Equity Security on
the date in question (or, if there is no reported sale on such date,
on the last preceding date on which any reported sale occurred) on
the Composite Tape for the New York Stock Exchange-Listed Stocks or,
if on such date the Common Stock or Subsidiary Equity Security is
not quoted on such Composite Tape, on the New York Stock Exchange.
Income Recognition Date: With respect to any share of Common
Stock purchased upon the exercise of an Option or any Subsidiary
Equity Security distributed in connection therewith, the later of
(a) the date of such exercise, or (b) the date on which the rights
of the holder of such Option in such security become transferable
and not subject to a substantial risk of forfeiture (within the
meaning of Section 83 of the Code); provided, however, that if such
holder shall make an election pursuant to Section 83(b) of the Code
with respect to such security the Income Recognition Date with
respect thereto shall be the date of the Option exercise.
Option Cancellation Gain: With respect to the cancellation of
an Option pursuant to Section 3 of Article IV hereof, the sum of (a)
the excess of the Fair Market Value as of the Option Cancellation
Date (as that term is defined in Section 3 of Article IV hereof) of
all the outstanding shares of Common Stock covered by such Option,
whether or not then exercisable, over the purchase price of such
shares under such Option, (b) the Fair Market Value as of the Option
Cancellation Date of any Subsidiary Equity Securities that would
have been distributed pursuant to Section 5 of Article VII hereof
had there been an exercise as of the Option Cancellation Date of all
the outstanding shares of Common Stock covered by such Option,
whether or not then exercisable, (c) the amount of any cash in lieu
of any Subsidiary Equity Securities and any fractional interests
therein that would have been distributed pursuant to Section 5 of
Article VII hereof had there been an exercise as of the Option
Cancellation Date of all the outstanding shares of Common Stock
covered by such Option, whether or not then exercisable, plus (d)
the amount equal to the Applicable Rate multiplied by the total of
the amounts set forth in clauses (a), (b) and (c).
Option Gain: The sum of (a) the excess of the Fair Market
Value of the shares of Common Stock covered by the exercise of an
Option over the purchase price of such shares under such Option,
plus (b) the Fair Market Value of any Subsidiary Equity Securities
(including fractions thereof) distributed or paid in the form of
cash as a result of such exercise pursuant to Section 5 of Article
VII hereof; as such Fair Market Values are determined in each case
on (i) the Income Recognition Date with respect to each such
security or (ii) the date of such exercise, whichever is less.
Rule 16b-3: Rule 16b-3 promulgated by the SEC under the
Exchange Act, or any successor rule or regulation thereto as in
effect from time to time.
SEC: The Securities and Exchange Commission, including the
staff thereof, or any successor thereto.
Section 162(m): Section 162(m) of the Code and all regulations
promulgated thereunder as in effect from time to time.
Subsidiary: Any corporation of which stock representing at
least 50% of the ordinary voting power is owned, directly or
indirectly, by the Company and any other entity of which equity
securities or interests representing at least 50% of the ordinary
voting power or 50% of the total value of all classes of equity
securities or interests of such entity are owned, directly or
indirectly, by the Company.
Subsidiary Equity Security: Any security or interest in the
nature of an equity security or interest, according to generally
accepted accounting principles, of a Subsidiary or a former
Subsidiary or any security or interest representing such a security
or interest; including specifically, but without limiting the
generality of the foregoing, shares of common stock of
Freeport-McMoRan Gold Company, Freeport-McMoRan Copper Company,
Inc., and Freeport-McMoRan Oil & Gas Company and depositary units of
Freeport-McMoRan Energy Partners, Ltd. and Freeport-McMoRan Resource
Partners, Limited Partnership.
ARTICLE III
ADMINISTRATION OF THE PLAN
The Plan shall be administered by the Board. The Board will
interpret this Plan and may from time to time adopt such rules and
regulations for carrying out the terms and provisions of this Plan as it
may deem best; however, the Board shall have no discretion with respect
to the selection of directors who receive Options, the number of shares
of Common Stock subject to any Options or the purchase price thereof.
Notwithstanding the foregoing, the Committee shall have the authority to
make all determinations with respect to the transferability of Options in
accordance with Article VIII hereof. All determinations by the Board or
the Committee shall be made by the affirmative vote of a majority of its
respective members, but any determination reduced to writing and signed
by a majority of its respective members shall be fully as effective as if
it had been made by a majority vote at a meeting duly called and held.
Subject to any applicable provisions of the Company's By-Laws or of this
Plan, all determinations by the Board and the Committee pursuant to the
provisions of this Plan, and all related orders or resolutions of the
Board and the Committee, shall be final, conclusive and binding on all
persons, including the Company and its stockholders, employees, directors
and optionees. In the event of any conflict or inconsistency between
determinations, orders, resolutions, or other actions of the Committee
and the Board taken in connection with this Plan, the actions of the
Board shall control.
ARTICLE IV
STOCK SUBJECT TO THE PLAN
SECTION 1. The shares to be issued or delivered upon exercise of
Options shall be made available, at the discretion of the Board, either
from the authorized but unissued shares of Common Stock of the Company or
from shares of Common Stock reacquired by the Company, including shares
purchased by the Company in the open market or otherwise obtained;
provided, however, that the Company, at the discretion of the Board, may,
upon exercise of Options granted under this Plan, cause a Subsidiary to
deliver shares of Common Stock held by such Subsidiary. Any Subsidiary
Equity Securities distributed pursuant to Section 5 of Article VII of
this Plan shall be made available from the Company's holdings of such
Subsidiary Equity Securities purchased by the Company or a Subsidiary in
the open market or otherwise obtained.
SECTION 2. Subject to the provisions of Section 3 of this Article
IV, the aggregate number of shares of Common Stock which may be purchased
pursuant to Options shall not exceed 250,000.
SECTION 3. In the event of the payment of any dividends payable in
Common Stock, or in the event of any subdivision or combination of the
Common Stock, the number of shares which may be purchased under this Plan
shall be increased or decreased proportionately, as the case may be, and
the number of shares of Common Stock deliverable upon the exercise
thereafter of any Option theretofore granted (whether or not then
exercisable) shall be increased or decreased proportionately, as the case
may be, without change in the aggregate purchase price. In the event the
Company is merged or consolidated into or with another corporation in a
transaction in which the Company is not the survivor, or in the event
that substantially all of the Company's assets are sold to another entity
not affiliated with the Company, any holder of an Option, whether or not
then exercisable, shall be entitled to receive (unless the Company shall
take such alternative action as may be necessary to preserve the economic
benefit of the Option for the optionee) on the effective date of any such
transaction (the "Option Cancellation Date"), in cancellation of such
Option, an amount in cash equal to the Option Cancellation Gain relating
thereto, determined as of the Option Cancellation Date. In the event of
(i) a dividend or distribution (other than cash dividends or
distributions) with respect to any Subsidiary Equity Securities
distributable or payable in the form of cash pursuant to Section 5 of
Article VII hereof, (ii) a subdivision or combination of any such
Subsidiary Equity Securities, (iii) any recapitalization, reorganization,
merger, consolidation, liquidation, or other extraordinary event
affecting any such Subsidiary Equity Securities, or (iv) the disposition
by the Company and its Subsidiaries of all or substantially all of their
holdings of any such Subsidiary Equity Securities, the terms of any
Option theretofore granted hereunder (whether or not then exercisable)
shall be subject to such adjustment as the Board may deem appropriate,
including, without limitation, a proportional adjustment in the number of
such Subsidiary Equity Securities deliverable upon the exercise of such
Option or of any right attached thereto or provided for therein or the
substitution, on an equitable basis, of Common Stock, other Subsidiary
Equity Securities, or a combination thereof for such Subsidiary Equity
Securities.
ARTICLE V
PURCHASE PRICE OF OPTIONED SHARES
The purchase price per share of Common Stock under each Option shall
be 100% of the Fair Market Value of a share of Common Stock at the time
such Option is granted, but in no case shall such price be less than the
par value of the Common Stock.
ARTICLE VI
ELIGIBILITY OF RECIPIENTS
Options will be granted only to individuals who are Eligible
Directors at the time of such grant. No individual who is an employee of
the Company or a Subsidiary at the time of such grant shall be eligible
to receive an Option.
ARTICLE VII
GRANT OF OPTIONS
SECTION 1. Each Option shall constitute a non-qualified stock
option which is not intended to qualify under Section 422A of the Code.
SECTION 2. On May 1, 1988 and May 1 of each subsequent year through
and including 1997, each Eligible Director, as of each such date, shall
be granted an Option to purchase 1,664 shares of Common Stock. Each
Option shall become exercisable with respect to416 shares on each of the
first, second, third and fourth anniversaries of the date of grant and
may be exercised by the holder thereof with respect to all or any part of
the shares comprising each installment as such holder may elect at any
time after such installment becomes exercisable but no later than the
termination date of such Option; provided that each Option shall become
exercisable in full upon a Change in Control.
SECTION 3. The purchase price of shares subject to any Option shall
be the Fair Market Value thereof on the respective date of grant.
SECTION 4. Each Option shall provide that, promptly following the
last Income Recognition Date with respect to an exercise of all or any
portion of such Option, the Company shall pay to the holder of such
Option an amount in cash equal to the Option Gain multiplied by the
Applicable Rate. If an Option has been transferred pursuant to Section
VIII(c) hereof, the right to any payment under this Article VII, Section
4 remains with the original holder of the Option, except that in the case
of a transfer pursuant to a domestic relations order, such payment shall
be made to the spouse responsible for the federal income tax related to
the Option exercise.
SECTION 5. Each Option shall provide that, upon the exercise of
such Option or portion thereof, the holder of such Option will be
entitled to receive from the Company any Subsidiary Equity Securities
distributed or distributable in respect of the shares of Common Stock
covered by such exercise, to which the holder would have been entitled
had such holder been a holder of record of such covered shares at all
times from the date of grant of such Option to the date immediately
preceding the effective date of such exercise. Any such distribution
will be in kind, with cash payment for fractional interests of any
Subsidiary Equity Security to be valued in proportion to the Fair Market
Value of the respective Subsidiary Equity Security on the date of such
exercise. Notwithstanding the foregoing, if the holder of an Option is,
on the date of any such exercise, ineligible to own any Subsidiary Equity
Securities that would otherwise be distributable to such holder in
accordance with this section, such holder will be entitled to receive
from the Company in cash the Fair Market Value, as of such date, of any
such Subsidiary Equity Securities (including fractions thereof).
ARTICLE VIII
TRANSFERABILITY OF OPTIONS
No Options granted hereunder may be transferred, pledged, assigned
or otherwise encumbered by an optionee except:
(a) by will;
(b) by the laws of descent and distribution; or
(c) if permitted by the Committee and so provided in the Option or
an amendment thereto, (i) pursuant to a domestic relations order, as
defined in the Code, (ii) to Immediate Family Members, (iii) to a
partnership in which Immediate Family Members, or entities in which
Immediate Family Members are the sole owners, members or beneficiaries,
as appropriate, are the only partners, (iv) to a limited liability
company in which Immediate Family Members, or entities in which Immediate
Family Members are the sole owners, members or beneficiaries, as
appropriate, are the only members, or (v) to a trust for the sole benefit
of Immediate Family Members. "Immediate Family Members" shall be defined
as the spouse and natural or adopted children or grandchildren of the
optionee and their spouses.
Any attempted assignment, transfer, pledge, hypothecation or other
disposition of Options, or levy of attachment or similar process upon
Options not specifically permitted herein, shall be null and void and
without effect.
ARTICLE IX
EXERCISE OF OPTIONS
SECTION 1. Each Option shall terminate 10 years and two days from
the date on which it was granted.
SECTION 2. Except in cases provided for in Article X hereof, each
Option may be exercised by the holder thereof only while the optionee to
whom such Option was granted is an Eligible Director.
SECTION 3. Each Option shall provide that the Option or any portion
thereof may be exercised only during an Election Period. Each Option
shall provide, however, that in the event of a Change in Control, the
Election Period exercise requirement is waived.
SECTION 4. A person electing to exercise an Option or any portion
thereof then exercisable shall give written notice to the Company of such
election and of the number of shares of Common Stock such person has
elected to purchase, and shall at the time of purchase tender the full
purchase price of such shares, which tender shall be made in cash or cash
equivalent (which may be such person's personal check) or in shares of
Common Stock already owned by such person (which shares shall be valued
for such purpose on the basis of their Fair Market Value on the date of
exercise), or in any combination thereof. The Company shall have no
obligation to deliver shares of Common Stock pursuant to the exercise of
any Option, or any Subsidiary Equity Securities distributable in
connection therewith, in whole or in part, until such payment in full of
the purchase price of such shares of Common Stock is received by the
Company. No optionee, or legal representative, legatee, distributee, or
assignee of such optionee, shall be or be deemed to be a holder of any
shares of Common Stock subject to such Option or any Subsidiary Equity
Securities distributable in connection with the exercise thereof, or
entitled to any rights of a stockholder of the Company or a Subsidiary in
respect of any shares of Common Stock covered by such Option or any
Subsidiary Equity Securities distributable in connection therewith until
such shares of Common Stock have been paid for in full and certificates
for such shares of Common Stock and such Subsidiary Equity Securities
have been issued or delivered by the Company.
SECTION 5. Each Option shall be subject to the requirement that if
at any time the Board shall be advised by counsel that the listing,
registration or qualification of the shares of Common Stock subject to
such Option, or the Subsidiary Equity Securities distributable in
connection with the exercise thereof, upon any 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 granting of such Option or the issue or
purchase of shares thereunder or the distribution of Subsidiary Equity
Securities with respect thereto, such Option may not be exercised in
whole or in part unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free from any
conditions not reasonably acceptable to such counsel for the Board.
SECTION 6. The Company may establish appropriate procedures to
provide for payment or withholding of such income or other taxes as may
be required by law to be paid or withheld in connection with the exercise
of Options, and to ensure that the Company receives prompt advice
concerning the occurrence of any event which may create, or affect the
timing or amount of, any obligation to pay or withhold any such taxes or
which may make available to the Company any tax deduction resulting from
the occurrence of such event.
ARTICLE X
TERMINATION OF SERVICE
AS AN ELIGIBLE DIRECTOR
SECTION 1. If and when an optionee shall cease to be an Eligible
Director for any reason other than death or retirement from the Board,
all of the Options granted to such optionee shall be terminated except
that any Option, to the extent then exercisable, may be exercised by the
holder thereof within three months after such optionee ceases to be an
Eligible Director, but not later than the termination date of the Option.
SECTION 2. If and when an optionee shall cease to be an Eligible
Director by reason of the optionee's retirement from the Board, all of
the Options granted to such optionee shall be terminated except that any
Option, to the extent then exercisable or exercisable within one year
thereafter, may be exercised by the holder thereof within three years
after such retirement, but not later than the termination date of the
Option.
SECTION 3. Should an optionee die while serving as an Eligible
Director, all the Options granted to such optionee shall be terminated,
except that any Option to the extent exercisable by the holder thereof at
the time of such death, together with the unmatured installment (if any)
of such Option which at that time is next scheduled to become
exercisable, may be exercised within one year after the date of such
death, but not later than the termination date of the Option, by the
holder thereof, the optionee's estate, or the person designated in the
optionee's last will and testament, as appropriate.
SECTION 4. Should an optionee die after ceasing to be an Eligible
Director, all of the Options granted to such optionee shall be
terminated, except that any Option, to the extent exercisable by the
holder thereof at the time of such death, may be exercised within one
year after the date of such death, but not later than the termination
date of the Option, by the holder thereof, the optionee's estate, or the
person designated in the optionee's last will and testament, as
appropriate.
ARTICLE XI
AMENDMENTS TO PLAN AND OPTIONS
The Board may at any time terminate or from time to time amend,
modify or suspend this Plan; provided, however, that no such amendment or
modification without the approval of the stockholders shall:
(a) except pursuant to Section 3 of Article IV, increase the
maximum number (determined as provided in this Plan) of shares of
Common Stock which may be purchased pursuant to Options, either
individually or in aggregate;
(b) permit the granting of any Option at a purchase price
other than 100% of the Fair Market Value of the Common Stock at the
time such option is granted, subject to adjustment pursuant to
Section 3 of Article IV;
(c) permit the exercise of an Option unless the full purchase
price of the shares as to which the Option is exercised is paid at
the time of exercise;
(d) extend beyond May 1, 1997, the period during which Options
may be granted;
(e) modify in any respect the class of individuals who
constitute Eligible Directors; or
(f) materially increase the benefits accruing to participants
hereunder.
As amended effective December 10, 1996