EXHIBIT 10.5
THIRD AMENDMENT AND AGREEMENT
UNDER THE PARTNERSHIP AGREEMENT
This Third Amendment and Agreement Under the Partnership Agreement
(this "Amendment") is dated as of December 22, 1997 by and among (i) IMC Global
Operations Inc., a Delaware corporation ("Operations"), (ii) Freeport-McMoRan
Resource Partners, Limited Partnership, a Delaware limited partnership ("FRP"),
(iii) IMC-Agrico MP, Inc., a Delaware corporation (the "Managing Partner"), and
(iv) IMC-Agrico Company, a Delaware general partnership (the "Partnership").
WITNESSETH
WHEREAS, Operations, FRP and the Managing Partner are parties to an
Amended and Restated Partnership Agreement dated as of July 1, 1993, as further
amended and restated as of May 26, 1995, as further amended by the Amendment
and Agreement under the Partnership Agreement dated January 23, 1996 and the
Second Amendment and Agreement under the Partnership Agreement dated January
1, 1997 (as amended, the "Partnership Agreement");
WHEREAS, IMC Global Inc., a Delaware corporation ("IMC") and Freeport-
McMoRan Inc., a Delaware corporation ("FTX"), entered into an Agreement and
Plan of Merger dated as of August 26, 1997 (the "Merger Agreement") which
provided for the merger (the "Merger") of FTX with and into IMC, with IMC as
the surviving corporation;
WHEREAS, the Merger was consummated on December 22, 1997 (the "Merger
Date");
WHEREAS, Operations, FRP, the Managing Partner and the Partnership
believe that certain amendments to the Partnership Agreement are necessary or
advisable as a result of the Merger;
NOW, THEREFORE, in consideration of the covenants and agreements
herein set forth and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree
as follows:
1. References in the Partnership Agreement to "IMC GPCo" shall be
and hereby are deemed to mean "Operations" to the extent necessary to
effectuate the purposes of this Amendment.
2. References to "two CEOs" or "CEOs" shall be and hereby are
deemed to mean the Managing Partner to the extent necessary to effectuate the
purposes of this Amendment.
3. References in the Partnership Agreement to "IMC
Representatives," "FRP Representatives" and "Representatives" shall be and
hereby are deleted in their entirety to the extent necessary to effectuate
the purposes of this Amendment.
4. References in the Partnership Agreement to "IMC Alternates,"
"FRP Alternates," and "Alternate" shall be and hereby are deleted in their
entirety to the extent necessary to effectuate the purposes of this Amendment.
5. Reference to the Policy Committee, except with respect to
Section 6.04, shall be and hereby are deemed to mean the Managing Partner to
the extent necessary to effectuate the purpose of this Amendment.
6. Section 6.04 shall be and hereby is restated in its entirety as
follows:
"(a) The purpose of the Policy Committee shall be to review
potential conflicts of interest between IMC stockholders and FRP
unitholders and to advise the Managing Partner and Operations on any
potential conflicts of interest. The Policy Committee shall not be
responsible for the management of the Partnership. Management of the
Partnership shall be solely the responsibility of the Managing Partner.
(b) The Policy Committee shall consist of six (6) members.
The Managing Partners shall select the members to serve on the Policy
Committee who shall serve in such capacity until removed, with or
without cause, by the Managing Partner. The Policy Committee shall
elect a member to serve as Chairman of the Policy Committee.
(c) The Policy Committee shall meet from time to time as
necessary at the call of the Chairman upon at least ten (10) days'
notice to the other members (or such shorter periods as may be necessary
in an emergency) or by the unanimous written consent of the members.
Attendance by any member at any meeting of the Policy Committee shall
constitute an effective waiver of any required prior notice of such
meeting. The Chairman of the Policy Committee shall (i) with reasonable
advance notice, prepare and distribute an agenda for each meeting of the
Policy Committee, (ii) organize and conduct such meeting and (iii)
prepare and distribute minutes of such meeting. Any member may propose
in advance topics for the agenda or raise topics which are not on the
agenda for such meeting.
(d) Meetings of the Policy Committee may only be held when a
quorum is present. A quorum of the Policy Committee shall be comprised
of three (3) members. The affirmative vote of a majority of the members
of Policy Committee at a meeting at which a quorum is present must be
obtained in connection with the decision of any matter being considered
by the Policy Committee. Members constituting a quorum may, upon their
unanimous consent, participate in a meeting of the Policy Committee by
means of conference telephone or similar communication equipment which
makes it possible for all persons participating in the meeting to hear
each other. Members may consent to any action without a meeting, upon
their unanimous consent."
7. Section 6.07 shall be and hereby is deleted in its entirety
and all references in the Partnership Agreement to "Major Decisions" are
hereby deleted in their entirety to reflect that decisions with respect to
the Partnership shall be made solely by the Managing Partner.
8. Section 9.01(a) shall be and hereby is amended and restated in
its entirety as follows:
"The Fiscal Year for the Partnership shall begin on January 1 and
end on December 31 of each year of the Partnership"
and all references in the Partnership Agreement, including all exhibits hereto,
to "June 30" or to "Fiscal Year" shall be deemed to mean "December 31" to the
extent necessary to effectuate the foregoing.
IN WITNESS WHEREOF, the parties have signed this Amendment as of the
date first written above.
IMC GLOBAL OPERATIONS INC.
By: /s/ Rose Xxxxx Xxxxxxxx
Name: Rose Xxxxx Xxxxxxxx
Title: Secretary
FREEPORT-MCMORAN RESOURCE PARTNERS,
LIMITED PARTNERSHIP, by IMC GLOBAL INC.,
its administrative managing partner
By: /s/ Rose Xxxxx Xxxxxxxx
Name: Rose Xxxxx Xxxxxxxx
Title: Secretary, IMC Global Inc.
IMC-AGRICO MP, INC.
By: /s/ Rose Xxxxx Xxxxxxxx
Name: Rose Xxxxx Xxxxxxxx
Title: Secretary
IMC AGRICO COMPANY
By: IMC-Agrico MP, Inc.,
its managing general partner
By: /s/ Rose Xxxxx Xxxxxxxx
Name: Rose Xxxxx Xxxxxxxx
Title: Secretary, IMC-Agrico MP, Inc.
