EXHIBIT B
TO CONTRIBUTION AND
DISTRIBUTION AGREEMENT
EMPLOYEE BENEFITS AGREEMENT
This EMPLOYEE BENEFITS AGREEMENT, dated as of __________, 1997,
entered into by FREEPORT-McMoRan RESOURCE PARTNERS, LIMITED PARTNERSHIP, a
Delaware limited partnership (together with its successors and permitted
assigns, "FRP"), FREEPORT-McMoRan INC., a Delaware corporation (together with
its successors and permitted assigns, "FTX") and FREEPORT-McMoRan Sulphur
Inc., a Delaware corporation (together with its successors and permitted
assigns, "COMPANY"),
WITNESSETH:
WHEREAS, the parties hereto have entered into a CONTRIBUTION AND
DISTRIBUTION AGREEMENT, which includes covenants regarding assets and
liabilities of FRP that are to be transferred to Company; and
WHEREAS, the parties desire to provide for the transfer of assets and
liabilities pertaining to certain employee-benefit plans maintained by FTX for
the benefit of FTX employees who have in the past provided services for FRP, and
to provide regarding the compensation and benefits of those of such employees
who will be employees of Company;
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the meaning set forth below.
(a) "Adjusted Company Award" shall mean a non-qualified stock option
to purchase Company Shares with in tandem "limited rights" that results from the
adjustment and conversion of an FTX Award pursuant to Paragraph 5.
(b) "Adjusted FTX Award" shall mean an FTX Award that is adjusted in
accordance with the provisions of Paragraph 5.
(c) "Adjusted Stock Award Plan" shall mean the Company Adjusted Stock
Award Plan, adopted pursuant to Paragraph 5.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(e) "Company Pension Plan" shall mean a defined-benefit pension plan
sponsored by Company for the benefit of Transferred Employees.
(f) "Company Shares" shall mean Common Stock, par value $______ per
share, of the Company.
(g) "Distribution Date" shall mean the effective date of the
Distributions.
(h) "Effective Time" shall mean the date of the merger of
Freeport-McMoRan Inc. into IMC Global Inc.
(i) "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
(j) "Former Sulphur Employee" shall mean an employee who (i) either
(A) retired from FTX or an Affiliate under circumstances making him eligible
under one or more plans or arrangements of FTX or the Affiliate to receive
medical, dental or life insurance benefits during retirement, or (B) terminated
employment from FTX or an Affiliate under circumstances making him eligible for
benefits under the FTX Pension Plan, and (ii) during all of his or her last
three years of employment, provided services primarily for the Transferred
Businesses.
(k) "FTX AIP" shall mean the Freeport-McMoRan Inc. Annual Incentive
Plan.
(l) "FTX Award" shall mean a stock option, stock appreciation right,
limited right, stock incentive unit or other award relating to FTX Shares that
has been granted under an FTX Stock Plan and is outstanding on the Distribution
Date and held by any person other than an employee of IMC-Agrico Company.
(m) "FTX Benefit Arrangements" shall mean each employment, severance,
termination, consulting, retirement or similar contract, arrangement or policy,
and each plan or arrangement (whether or not written) providing for severance
benefits, insurance coverage (including any self-insured arrangements),
disability benefits, supplemental unemployment benefits, vacation benefits,
retirement benefits, deferred compensation, profit-sharing, bonuses, stock
options, stock appreciation rights or other forms of incentive compensation or
post-retirement insurance, compensation or benefits that (i) is not an FTX
Employee Plan, (ii) is entered into, maintained, or contributed to, as the case
may be, by FTX or any of its affiliates and (iii) covers any Transferred
Employee.
(n) "FTX EBP" shall mean the Freeport-McMoRan Inc. Excess Benefits
Plan.
(o) "FTX Employee Plans" shall mean each "employee benefit plan," as
defined in Section 3(3) of ERISA, that (i) is subject to any provision of
ERISA, (ii) is maintained, administered or contributed to by FTX and
(iii) covers any Transferred Employee.
(p) "FTX ECAP" shall mean the Freeport-McMoRan Inc. Employee Capital
Accumulation Program.
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(q) "FTX Grandfathered Plan" shall mean the Freeport-McMoRan Inc.
Grandfathered Retirement Benefit Plan.
(r) "FTX LTPIP" shall mean either or both of the Freeport-McMoRan
Inc. 1987 Long-Term Performance Incentive Plan and the Freeport-McMoRan
Inc. 1992 Long-Term-Performance Incentive Plan.
(s) "FTX Pension Plan" shall mean the FMI Employee Retirement Plan.
(t) "FTX PIAP" shall mean the Freeport-McMoRan Inc. Performance
Incentive Awards Program.
(u) "FTX PAP" shall mean the Freeport-McMoRan Inc. President's Award
Program.
(v) "FTX SECAP" shall mean the Freeport-McMoRan Inc. Supplemental
Executive Capital Accumulation Plan.
(w) "FTX Shares" shall mean shares of FTX common stock, par value
$.01 per share.
(x) "Retired Employees" shall mean all former and retired employees
of FTX and its subsidiaries, and long-term disabled employees of FTX and
its subsidiaries who did not work primarily for the Transferred Businesses,
as of the Effective Time, including those persons who retire from FTX at
any time up to the date of the Merger.
(y) "Rule 16b-3" shall mean Rule 16b-3 promulgated under Section 16
of the Securities Exchange Act of 1934, and any successor provision.
(z) "Section 162(m)" shall mean Section 162(m) of the Code and any
memoranda or decisions issued by the Internal Revenue Service or the
Department of the Treasury with respect thereto.
(aa) "Securities Act" shall mean the Securities Act of 1933, as
amended.
(bb) "Transferred Employees" shall mean those employees of FTX or its
subsidiaries who by mutual agreement between FTX and Company become
employees of Company on or about the Effective Time, or who are actively
employed in the Transferred Businesses (as defined in the Contribution and
Distribution Agreement) on the Effective Time. Employees of FM Services
Inc. and its subsidiaries are not Transferred Employees.
Capitalized terms used in this document that are not defined herein shall
have the meanings set forth in the Contribution and Distribution Agreement
having the same date and entered into by the same parties.
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2. EMPLOYMENT BY THE COMPANY.
(a) Each Transferred Employee will become an employee of Company on
or before the Effective Time. Except as otherwise provided in this Agreement,
Company will not assume the liabilities of FTX in respect of the Transferred
Employees for accrued but unpaid salaries, wages, or other compensation or
benefits with respect to service prior to the Effective Time, which liabilities
shall remain with FTX.
(b) No provision of this Agreement shall preclude or impair the
ability of Company to terminate the employment of any Transferred Employee or to
change the terms, conditions or location of employment following the Effective
Time.
3. PENSION PLANS.
(a) As of the Effective Time, FTX shall cause to be transferred to a
newly-created separate defined-benefit pension plan (the "Spin-Off Plan") the
assets and liabilities of the FTX Pension Plan that are attributable to the
Transferred Employees. The Spin-Off Plan shall have substantially the same
terms and conditions as the FTX Pension Plan, subject to any limitation required
by Company regarding accrual of benefits after the Effective Time. In
connection with the transfer, FTX shall make all filings and submissions to
governmental agencies as are required by law, and shall make all amendments to
the FTX Pension Plan and related trust agreement as are necessary. The accrued
benefits attributable to the Transferred Employees shall be 100% vested. The
transfer shall be made as of the "Transfer Date", which shall be the Effective
Time, or at such other time as is mutually agreed upon by FTX and Company.
(b) The amount of the assets required under Paragraph (a) to be
transferred (the "Transfer Amount") shall be equal to the Account Balances of
the Transferred Employees under the FTX Plan as of the Effective Time, including
Annual Additions with respect to Earnings throught the Effective Time and Annual
Interest Credits through the Effective Time. The Transfer Amount shall in no
event be less than the minimum amount necessary to satisfy all requirements of
the Code and regulations. The Transfer Amount shall be transferred within 30
days after the Effective Time. The terms Account Balance, Earnings, Annual
Additions, and Annual Interest Credits as used in this paragraph have the same
meaning as in the FTX Pension Plan.
(c) As of the Effective Time (or such other date as agreed to by the
Company and FTX) Company shall become the sponsor of the Spin-Off Plan referred
to in Paragraph (a) (hereafter "Company Pension Plan") and its related trust,
which will hold the Transfer Amount. Company shall take all necessary steps,
including the prompt filing of an application to the Internal Revenue Service
for a favorable determination letter, to assure that the Company Pension Plan is
qualified under Internal Revenue Code Section 401(a). As of the date of the
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transfer of the Transfer Amount, the Company Pension Plan shall assume the
liabilities of the FTX Pension Plan that are attributable to the Transferred
Employees, and the FTX Pension Plan (and FTX as sponsor of the FTX Pension Plan)
shall have no further liability with respect to the Transferred Employees.
Company shall be under no obligation to accrue benefits under the Company
Pension Plan after the Effective Time at the same rate as under the FTX Pension
Plan, and may terminate the Company Pension Plan. Company shall have no
obligations or liabilities arising under or attributable to the FTX Pension
Plan, other than as described above.
(d) As of the Effective Time, Company shall assume the liabilities in
respect of Transferred Employees under the FTX EBP and the FTX Grandfathered
Plan, and FTX shall have no further obligation under such plans with respect to
such employees. As consideration for the assumption of such liabilities by
Company, FTX shall pay to Company an amount, estimated at $700,000, that the
plans' actuary shall determine is equal to the value as of the Effective Time of
the benefits accrued under the plans by the Transferred Employees. The value of
a Transferred Employee's accrued benefit under the FTX EBP shall be equal to the
difference between the Participant's actual Account Balance under the FTX
Pension Plan and the Account Balance the Participant would have had under the
assumptions set forth in the FTX EBP. The value of a Transferred Employee's
accrued benefit under the FTX Grandfathered Plan shall be determined under the
assumptions of that plan as if the Transferred Employee had retired as of the
Effective Time and elected to receive an immediate lump-sum benefit. The
payment with respect to the FTX Grandfathered Plan shall be made only with
respect to the Transferred Employees (if any) who have reached the age of 55 by
the Effective Time. Company shall have no obligation to allow Transferred
Employees to continue to accrue benefits under such plans after the Effective
Time.
4. INDIVIDUAL ACCOUNT PLANS
(a) As of the Effective Time, Company shall adopt the FTX ECAP and
its related trust, and the documents governing said plan and trust shall be
amended by FTX and the Company to provide that, commencing at the Effective
Time, FTX will no longer have any powers or duties with respect to said plan and
trust, and the Company will have all powers and duties with respect to the plan
and trust that pertain to a plan sponsor. Within 15 days following the Effective
Time, FTX shall pay to the trustee of said trust any amounts payable to the
trust that it has received or withheld from participants, and any matching
contributions due under said plan.
(b) The FTX ECAP will be amended prior to the Effective Time to
permit it to hold Company shares.
(c) As of the Effective Time, the FTX SECAP document shall be amended
by FTX and the Company to provide that the Company assumes all liabilities in
respect of Transferred Employees under the FTX SECAP, and that FTX has no
further obligation under the FTX SECAP with respect to the account balances of
Transferred Employees. As consideration for the assumption of such liabilities
by Company, FTX shall pay to Company an amount equal to the account balances of
the Transferred Employees valued as of the date of the
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transfer. As the vehicle for satisfying the liabilities assumed under this
Paragraph (c), Company shall establish a Company SECAP. All account balances
of Transferred Employees in the Company SECAP shall be 100% vested. Company
shall have the right to amend or terminate the Company SECAP at any time,
provided that no amendment shall reduce participant account balances.
(d) The FTX SECAP will be amended prior to the Effective Time to
require immediate payout with respect to all participants other than the
Transferred Employees.
5. STOCK PLAN ADJUSTMENTS; ESTABLISHMENT OF NEW ADJUSTED STOCK AWARD
PLAN.
(a) Effective as of the Distribution Date, the Company shall adopt
the Adjusted Stock Award Plan and shall take all action necessary in regard to
such Plan, the benefits provided thereunder, and the transactions contemplated
thereby to ensure compliance with Rule 16b-3, Section 162(m) and the Securities
Act, as applicable and as deemed desirable by the Company. The Adjusted Stock
Award Plan shall be established for the exclusive purpose of granting the
Adjusted Company Awards as described in this Paragraph 5.
(b) Each outstanding FTX Award on the Distribution Date shall be
converted, in accordance with the procedures described in this Paragraph 5, into
an Adjusted FTX Award and an Adjusted Company Award. The number of Company
Shares subject to an Adjusted Company Award shall be that number of Company
Shares that a record holder of the number of FTX Shares underlying the related
FTX Award would have received in the FTX Distribution. Notwithstanding the
foregoing, if the FTX Award from which the Adjusted Company Award is derived
contains a right to receive a cash payment upon exercise of such FTX Award
related to and intended to defray the income tax liability associated therewith,
the number of Company Shares to be subject to the Adjusted Company Award,
determined according to the provisions of this Paragraph 5(b) (without
disregarding fractional Company Shares), shall be multiplied by 1.6556 and any
fractional Company Share resulting from such adjustment shall be disregarded.
Such adjustment shall not affect the calculation of the per Company Share
exercise price of the Adjusted Company Award as set forth in Paragraph 5(e)
below.
(c) Each Adjusted Company Award and each Adjusted FTX Award will have
the same remaining duration as the FTX Award from which it was derived.
(d) The exercise price of an Adjusted FTX Award shall be determined
by multiplying the exercise price of the FTX Award from which such Adjusted FTX
Award was derived by a fraction, the numerator of which is the FTX Net
Distribution Value, as defined below, and the denominator of which is the FTX
Distribution Value, as defined below.
(e) The exercise price of an Adjusted Company Award shall be
determined by multiplying the exercise price of the FTX Award from which such
Adjusted Company Award was derived by a fraction, the numerator of which is the
Company Distribution Value, as defined below, and the denominator of which is
the FTX Distribution Value.
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(f) For purposes of the foregoing, the "Company Distribution Value"
shall be the weighted average per share price of the Company Shares on the New
York Stock Exchange on the first day that Company Shares are traded on the New
York Stock Exchange after the effective date of the merger of Freeport-McMoRan
Inc. into IMC Global Inc.; the "FTX Distribution Value" shall be the weighted
average per share price of the FTX Shares on the New York Stock Exchange on the
last day that FTX Shares are traded on the New York Stock Exchange before the
effective date of the merger of Freeport-McMoRan Inc. into IMC Global Inc. and
the "FTX Net Distribution Value" shall be (i) the FTX Distribution Value minus
(ii) the product of the Distribution Ratio, as hereinafter defined, and the
Company Distribution Value. The "Distribution Ratio" shall mean the number of
Company Shares distributed in the FTX Distribution per FTX Share, rounded to the
nearest one-millionth (.000001) of a Company Share.
6. DEFERRED COMPENSATION LIABILITIES. As of the Distribution, FTX shall
calculate the liability of FTX and its subsidiaries in respect of the
Transferred Employees' deferred compensation, including without limitation
deferred awards under the FTX PIAP, FTX AIP, FTX LTPIP, and predecessor plans,
if any. In consideration of a cash payment made promptly after the Distribution
Date by FTX to the Company in an amount equal to such accrued liability, the
Company will assume such liability in respect of Transferred Employees.
7. WELFARE PLANS.
(a) As of the Effective Time, Transferred Employees shall cease
participation in all FTX Employee Plans and FTX Benefit Arrangements. Except as
otherwise set forth in this Agreement or in the Merger Agreement, FTX shall
retain all obligations and liabilities under the FTX Employee Plans and FTX
Benefit Arrangements.
(b) FTX and its FTX Employee Plans and FTX Benefit Arrangements shall
retain responsibility for the administration, liability, cost of coverage and
all amounts payable by reason of claims incurred by Transferred Employees (and
their dependents and beneficiaries) on or before the Effective Time, by reason
of claims incurred by Retired Employees, and by reason of claims incurred by FTX
employees who as of the Effective Time were on a leave of absence or were
receiving long term disability benefits, sick leave benefits, or similar
benefits. However, the Company shall assume responsibility for the
administration, liability, cost of coverage, and all amounts payable by reason
of employee benefit plan claims incurred by FTX employees (and their dependents)
who at the time the employees ceased active work for FTX performed services
primarily for the Transferred Businesses and who as of the Effective Time were
on a leave of absence or were receiving long term disability benefits, sick
leave benefits, or similar benefits. For such purpose, unless otherwise agreed
by FTX and the Company, a claim is deemed incurred on the date of the occurrence
of (i) death, dismemberment, accident, or other loss in the case of claims under
life insurance and accidental death and dismemberment benefits, (ii) in the case
of a hospital stay, based on the date any such hospitalization is initiated, or
(iii) the date on which the treatment or other service was rendered or the
medicine, equipment, supply or other material was furnished, as the case may be,
which resulted in the charge or expense giving rise to the claim in the case of
all other claims. This paragraph 7(b) shall not apply to claims under
applicable workman's compensation laws, the Jones Act, 46 U.S.C. Section 688,
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the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Section 901, et.
seq., or under similar laws, or arising in connection with any occupational
injury or disease.
(c) As of the Effective Time, Company shall be responsible for
post-retirement benefit liabilities in respect of Transferred Employees and FTX
shall have no further obligation for such liabilities with respect to such
employees. FTX shall pay to Company an amount that equals the liability that
has been accrued for such employees in accordance with the Financial Accounting
Standard Board No. 106 as provided in the Freeport-McMoRan Inc. Retiree Benefit
Plan's January 1, 1997 valuation report.
(d) The Company shall reimburse FTX for any payment (a "Reimbursable
Payment") that FTX properly makes to or on behalf of a Former Sulphur Employee
with respect to claims made after the Effective Time (or to an insurance company
to provide coverage for a Former Sulphur Employee after the Effective Time)
under the terms of any retiree medical, dental or life insurance plan or
arrangement of FTX. No later than 30 days following the end of each calendar
quarter, FTX shall provide the Company with a report providing in reasonable
detail its calculation of the total amount of Reimbursable Payments made by FTX
during the quarter, less any refunds or other offsetting payments or credits
received by FTX. The amount that Company shall reimburse FTX shall be equal to
the net amount of Reimbursable Payments by FTX, less the Credit Amount. The
Credit Amount for each calendar quarter shall be equal to 25% of 9.5% of a
fraction of the "Surplus", as defined below, which fraction shall be derived by
dividing the liabilities under the FTX Pension Plan as of the Effective Time
attributable to the Former Sulphur Employees by the total liabilities of the FTX
Pension Plan as of the Effective Time. The Surplus shall be the fair market
value of the assets of the FTX Pension Plan, less the total liabilities of the
FTX Pension Plan, as of the Effective Time. The assets and liabilities used in
this Paragraph 7(d) to calculate the Surplus and the appropriate fraction of the
Surplus shall be determined as of the Effective Time, but only with regard to
the portion of the FTX Pension Plan that remains after the transfer described in
Section 3(b) of this Agreement. Furthermore, for purposes of this Section 7(d),
the assets and liabilities of the FTX Pension Plan (after the transfer described
in Section 3(b) shall be determined on a FAS 87/88 basis. If the Credit Amount
for the current calendar quarter (plus any carried-forward excess from the
preceding calendar quarter) exceeds the Reimbursable Payments in a quarter no
payment shall be made between the parties. Any excess Credit Amount for the
current calendar quarter shall be carried forward to the next calendar quarter.
Company shall have the right to request an annual audit of the Reimbursable
Payments by an independent certified public accountant. This paragraph is not
intended to limit any rights that FTX may have to reduce its obligations under
any such plans or arrangements. However, FTX shall have no right to increase
its cost of benefits for any Former Sulphur Employee without obtaining 30-days
advance approval from Company. Nor shall FTX have the right to reduce the cost
of coverage for any Retired Employees who are not Former Sulphur Employees
without likewise reducing the cost of coverage for the Former Sulphur Employees.
(e) With respect to employees and their dependents (other than
Transferred Employees) who experience a qualifying event as defined in 29 U.S.C.
Section 603 as a result of the transactions contemplated in the Contribution and
Distribution Agreement and the Merger
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Agreement and who elect COBRA continuation group health coverage under 29
U.S.C. Sections 601, et. seq. ("COBRA Coverage"), the Company shall reimburse
FTX for any Reimbursable Payment that FTX properly makes to or on behalf of
such employees or dependents with respect to claims made after the Effective
Time under the plan providing such COBRA coverage (or to an insurance company
to provide COBRA Coverage for such employees or dependents after the
Effective Time) in accordance with the procedures set forth in 7(d) above.
(f) The employee benefit plans established by the Company for the
benefit of Transferred Employees shall give effect, in determining or applying
any copayments, benefit limits, deductibles and maximum out-of-pocket
limitations to claims incurred, amounts paid by, and amounts reimbursed to, such
employees under the corresponding FTX Employee Plans or FTX Benefit Arrangements
maintained by FTX for their benefit immediately prior to the Effective Time.
Further, the employee benefit plans established by the Company for the
Transferred Employees shall give credit for service at FTX and its subsidiaries
for purposes of any eligibility waiting periods and pre-existing condition
limitations. The employee benefit plans established by the Company that provide
a maximum annual benefit, such as a vacation plan or wage and salary
continuation, will take into account benefits used by the Transferred Employees
under the corresponding FTX Employee Plans or FTX Benefit Arrangements
maintained by FTX for their benefit immediately prior to the Effective Time.
(g) The Company will give Transferred Employees full credit for
purposes of eligibility, vesting, benefit accrual and benefit entitlement (as
such purposes may be applicable) under the employee benefit plans of the Company
for such employees' respective service recognized or applied for such purposes
under the corresponding FTX Employee Plan or FTX Benefit Arrangement, to the
extent applicable.
(h) FTX and the Company shall provide each other with copies of such
records as are reasonably required to enable the parties to perform their
obligations hereunder.
8. CASH BONUSES. As of the Effective Time, FTX shall in good faith
determine the total amount of cash incentive payments that it would have made to
the Transferred Employees under the FTX PIAP and the FTX PAP for 1997 (without
proration for a partial year), which determination shall be subject to the
limitations and other terms and conditions of Schedule 5.8(c) to the Merger
Agreement. In consideration of a cash payment made promptly after the Effective
Time by FTX to the Company in an amount equal thereto, the Company will assume
the payment of such amounts to the Transferred Employees, which will be made as
soon as feasible after 1997 in accordance with any procedures it may establish
with respect to the payment of any cash incentive payments to Company employees.
9. EXPENSES. Each of the Company and FTX shall pay its own expenses in
connection with the performance of its obligations under this Agreement.
10. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Louisiana.
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11. AMENDMENT AND WAIVER. This Agreement may not be altered or amended,
nor may rights hereunder be waived, except by an instrument in writing executed
by each party, or in the case of a waiver by an instrument in writing executed
by the party against whom such waiver is to be effective. No waiver of any
term, provision or condition of or failure to exercise or delay in exercising
any rights or remedies under this Agreement, in any one or more instances, shall
be deemed to be, or construed as, a further or continuing waiver of any such
term, provision, condition, right or remedy or as a waiver of any other term,
provision or condition of this Agreement.
12. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original instrument but all of
which together shall constitute but one and the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
FREEPORT-McMoRan INC.
By:
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Name:
Title:
FREEPORT-McMoRan RESOURCE PARTNERS,
LIMITED PARTNERSHIP
By: FREEPORT-McMoRan INC.,
Administrative Managing General Partner
By:
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Name:
Title:
By:
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Name:
Title:
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