Exhibit 10.14
SERVICES AGREEMENT
THIS SERVICES AGREEMENT (this "Agreement"), dated as of
December 23, 1997 by and between FM Services Company, a Delaware
corporation ("FMS"), and Freeport-McMoRan Sulphur Inc., a
Delaware corporation ("FSC").
WHEREAS, FSC desires that FMS furnish FSC and its
affiliates, as that term is defined in Rule 405 under the
Securities Act of 1933 (collectively, the "FSC Group"), with
Services, as defined below, to support and complement the
services provided by its officers, employees and other available
resources.
NOW THEREFORE, in consideration of the covenants and
agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Services. During the term of this Agreement
FMS shall furnish the following services (collectively, the
"Services") to the FSC Group: (a) accounting, treasury and
financial, (b) tax, (c) insurance and risk management (including
the purchase and maintenance on behalf of FSC of such insurance
as FSC deems necessary or appropriate), (d) human resources
(including employee benefit services), (e) management information
and system support, (f) governmental relations, (g) community
relations, (h) investor relations, (i) facilities management and
security, (j) marketing; business development, (k) executive
support, (l) aviation, (m) contract administration and (n) such
other services as may mutually be agreed upon by the parties
hereto. Services shall be provided directly by FMS or, in the
discretion of FMS, by affiliated or non-affiliated third parties.
Section 2. Administration of Services. FMS shall keep
the appropriate officers and employees of FSC and other members
of the FSC Group fully informed and shall cooperate with such
officers and employees with respect to the performance of
Services by FMS. Each member of the FSC Group shall have
complete and full access to all data, records, files, statements,
invoices, billings and other information generated by or in the
custody of FMS relating to Services provided to such entity.
Section 3. Compensation.
(a) As compensation for the performance of the Services,
FSC shall reimburse, or cause another member of the FSC Group to
reimburse, FMS for:
(i) All expenses of the Services incurred by FMS that
are readily identifiable to the FSC Group, including
personnel related costs (which shall be based upon
department head allocations), facilities related costs
(based upon personnel cost allocations) and aviation costs
("Direct Charges");
(ii) All costs of goods, services or other items
purchased from third parties by FMS for the FSC Group, to
the extent such costs are paid by FMS ("Third Party
Charges"); and
(iii) The portion of all other expenses incurred by
FMS in connection with providing the Services to the FSC
Group and similar services to Freeport-McMoRan Copper & Gold
Inc. ("FCX"), McMoRan Oil & Gas Co. ("MOXY") and FM
Properties Inc. ("FMPO") and their respective affiliates as
directed from time to time by the joint written instructions
of FSC, FCX, MOXY and FMPO pursuant to the Stockholder
Agreement of even date herewith among FSC, FCX, MOXY and
FMPO ("Allocated Charges").
(b) FMS shall invoice FSC by the last day of each month for
all Direct Charges, Third Party Charges and Allocated Charges
incurred for the immediately preceding month. All invoices shall
provide FSC with an account of all such charges and an accounting
for all Advances, as defined below, during such month. All
amounts shown on each invoice shall be due and payable within
five (5) days of the date of the invoice. In the event of a
dispute as to the propriety of any invoiced amount, FSC shall
pay, or cause the payment of, all undisputed amounts on each
invoice, but shall be entitled to withhold payment of any amount
in dispute and shall promptly notify FMS of the basis of the
dispute.
(c) FSC shall advance, or cause the advancement of, funds
to FMS for Direct Charges, Third Party Charges and Allocated
Charges from time to time during the term of this Agreement
(which may be as often as daily) as requested by FMS, such funds
to serve as an advance of the amounts to be invoiced hereunder
(the "Advances").
Section 4. Use of FMS Facilities. FMS shall provide the
FSC Group with a non-exclusive right to utilize its properties
and facilities, subject to such limitations, if any, as may be
imposed by leases and other agreements and instruments governing
the use of such properties and facilities.
Section 5. Terms of Agreement; Termination. (a) This
Agreement shall commence as of the date first above written and
shall continue in effect until (i) the parties mutually agree in
writing to terminate this Agreement, (ii) 90 days after receipt
by FMS of written notice from FSC of its request to terminate
this Agreement, or (iii) a Change in Control. A "Change in
Control" shall be deemed to have occurred if any Person or group
(within the meaning of Rule 13d-5 of the SEC as in effect on the
date hereof) shall own directly or indirectly, beneficially or of
record, shares representing 50% or more of the aggregate ordinary
voting power represented by the issued and outstanding capital
stock of FSC.
(b) Upon termination of this Agreement, FSC shall be liable
for (i) Direct Charges, Third Party Charges and Allocated Charges
incurred in accordance with Section 3 prior to termination, (ii)
its proportionate share of all costs incurred by FMS or which FMS
is obligated to incur in connection with providing the Services
after termination, because of the anticipated long-term nature of
this Agreement or otherwise, and (iii) all costs of such
termination, whether direct or indirect and including costs
incurred by FMS in connection with the termination by FMS of
obligations entered into in connection with the Services.
Section 6. Limitation of Liability.
(a) FMS makes no representation or warranty whatsoever,
express or implied, with respect to the Services. In no event
shall FMS be liable to FSC for (i) any loss, cost or expense
resulting from any act or omission taken at the express direction
of any member of the FSC Group or (ii) any special, indirect or
consequential damages resulting from any error or omission in the
performance of the Services or from the breach of this Agreement.
(b) Neither FMS nor FSC shall be liable for any loss or
damage or any nonperformance, partial or whole, under this
Agreement, caused by any strike, labor troubles, riot act of a
public enemy, insurrection, act of God, or any law, rule or
regulation promulgated by any governmental body or agency, or any
demand or requisition of any governmental body or agency, or any
other cause beyond the control of the parties hereto.
Section 7. Confidentiality. FMS will hold and will use
its best efforts to cause its officers, directors, employees and
other agents (collectively, its "Agents") to hold, in confidence,
all confidential documents and information concerning the FSC
Group furnished to such party in connection with this Agreement,
except to the extent that such information can be shown to have
been (a) previously known by such party on a nonconfidential
basis, (b) in the public domain through no fault of such party or
(c) later lawfully acquired by such party on a nonconfidential
basis from a source other than the FSC Group; provided that FMS
may disclose such information in connection with this Agreement
to its Agents so long as such persons are informed by FMS of the
confidential nature of such information and are directed by FMS
to keep such information confidential and not to use it for any
purpose other than its intended use. Notwithstanding the
foregoing, FMS or its Agents may disclose such information if (i)
compelled to disclose by judicial or administrative process or by
other requirements of law or (ii) necessary to establish such
party's position in any litigation or any arbitration or other
proceeding based upon or in connection with the subject matter of
this Agreement. Prior to any disclosure pursuant to the
preceding sentence, FMS or its Agent(s) shall give reasonable
prior notice to FSC of such intended disclosure, and if requested
by FSC, FMS shall use all reasonable efforts to obtain a
protective order or similar protection for such information and
shall otherwise disclose only such information as is legally
required. If all or any part of the Services are terminated, FMS
will, and will use its best efforts to cause its Agents to,
destroy or deliver to FSC, upon request, all documents and other
materials, and all copies thereof, containing confidential
information obtained from the FSC Group in connection with the
Services so terminated.
Section 8. Technology. FMS hereby grants to FSC a
royalty free, non-exclusive right and license to use (but not to
sublicense outside of the FSC Group) any and all technology,
whether or not patented, developed by or on behalf of FMS,
relating to the business of FSC; provided that the license hereby
granted shall not extend to (i) any technology developed for a
person not affiliated with FMS, pursuant to an arrangement
granting such person exclusive rights to such technology, or (ii)
any technology developed after the termination of this Agreement.
Section 9. Dispute Resolution. FSC and FMS shall use
all reasonable efforts to amicably resolve all disputes arising
under this Agreement. If despite such efforts any matter cannot
be amicably resolved the matter shall be referred to the
Presidents of FSC and FMS who shall promptly meet for the purpose
of resolving such dispute. If despite such efforts and meetings
the matter remains unresolved, then any affected party may refer
the matter to arbitration for final resolution in accordance with
the commercial rules of the American Arbitration Association.
Any matter submitted to arbitration shall be decided by a single
arbitrator selected by mutual agreement of the parties (or if the
parties cannot agree then such arbitrator shall be selected by
the appropriate official or designee of the American Arbitration
Association). Any such arbitration proceeding shall be held in
New Orleans, Louisiana. Each party shall bear its own costs and
expenses, and the arbitrator's fees and expenses and the costs
and expenses of the proceeding itself shall be borne by the
parties in such proportions as the arbitrator shall decide. The
decision of the arbitrator shall be final and non-appealable, and
may be enforced in any court of competent jurisdiction.
Section 10. Miscellaneous.
(a) The parties hereto are independent contractors.
Nothing in this Agreement is intended or shall be deemed to
constitute a partnership, agency, franchise or joint venture
relationship between the parties. Neither party shall incur any
debts or make any commitments upon the other, except to the
extent specifically provided herein.
(b) This Agreement constitutes the entire agreement between
the parties hereto with respect to the matters set forth in this
Agreement. This Agreement shall not be amended, modified or
supplemented except by an instrument in writing executed by each
of the parties hereto.
(c) All notices and other communications hereunder shall be
in writing and shall be given by hand delivery, certified or
registered mail, return receipt requested or telecopy
transmission with confirmation of receipt to the address of each
of the parties set forth opposite the signature of such party on
the signature page hereof. All notices and communications shall
be deemed given upon receipt thereof.
(d) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Louisiana
without the application of any conflicts of laws principles.
(e) This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors
and assigns. This Agreement shall not be assignable by any party
hereto without the prior written consent of the other party.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
Address for Notices: FM SERVICES COMPANY
1615 Poydras Street
New Orleans, LA 70112 By:/s/ Michael J. Arnold
Attention: General Counsel Michael J. Arnold
President
Address for Notices: FREEPORT-McMoRan SULPHUR
INC.
1615 Poydras Street
New Orleans, LA 70112 By:/s/ Robert M. Wohleber
Attention: General Counsel Robert M. Wohleber
President and
Chief Executive Officer