Exhibit 10.2
AMENDED AND RESTATED
SERVICES AGREEMENT
THIS AMENDED AND RESTATED SERVICES AGREEMENT (this
"Agreement"), dated as of December 23, 1997 by and between FM
Services Company, a Delaware corporation ("FMS"), and FM
Properties Inc., a Delaware corporation ("FMPO").
WHEREAS, FMS and FMPO entered into a Services Agreement
dated as of January 1, 1996 (the "Original Agreement") for the
provision of certain services by FMS for FMPO; and
WHEREAS, FMS and FMPO desire to amend and restate the
Original Agreement and for FMS to continue to furnish FMPO and
its affiliates, as that term is defined in Rule 405 under the
Securities Act of 1933 (collectively, the "FMPO 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 FMPO Group: (a) accounting, treasury and
financial, (b) tax, (c) insurance and risk management (including
the purchase and maintenance on behalf of FMPO of such insurance
as FMPO 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) 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 FMPO and other members
of the FMPO Group fully informed and shall cooperate with such
officers and employees with respect to the performance of
Services by FMS. Each member of the FMPO Group shall have
complete and full access to all data, records, files, statements,
invoices, xxxxxxxx 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,
FMPO shall reimburse, or cause another member of the FMPO Group
to reimburse, FMS for:
(i) All expenses of the Services incurred by FMS that
are readily identifiable to the FMPO 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 FMPO 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 FMPO
Group and similar services to Freeport-McMoRan Copper & Gold
Inc. ("FCX"), Freeport-McMoRan Sulphur Inc. ("FSC") and
McMoRan Oil & Gas Co. ("MOXY") and their respective
affiliates as directed from time to time by the joint
written instructions of FMPO, FCX, FSC and MOXY pursuant to
the Stockholder Agreement of even date herewith among FMPO,
FCX, FSC and MOXY ("Allocated Charges").
(b) FMS shall invoice FMPO 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 FMPO 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, FMPO 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) FMPO 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
FMPO 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 FMPO 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 FMPO.
(b) Upon termination of this Agreement, FMPO 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 FMPO for (i) any loss, cost or expense
resulting from any act or omission taken at the express direction
of any member of the FMPO 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 FMPO 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 FMPO
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 FMPO 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 FMPO of such intended disclosure, and if
requested by FMPO, 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 FMPO, upon request, all documents and other
materials, and all copies thereof, containing confidential
information obtained from the FMPO Group in connection with the
Services so terminated.
Section 8. Technology. FMS hereby grants to FMPO a
royalty free, non-exclusive right and license to use (but not to
sublicense outside of the FMPO Group) any and all technology,
whether or not patented, developed by or on behalf of FMS,
relating to the business of FMPO; 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. FMPO 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 FMPO 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
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxxx
Attention: General Counsel Xxxxxxx X. Xxxxxx
President
Address for Notices: FM PROPERTIES INC.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000 By: /s/ Xxxxxxx X. Xxxxxxxx
Attention: General Counsel Xxxxxxx X. Xxxxxxxx
Chairman of the Board and
Chief Executive Officer
