exhibit10_33.htm


    
      

    

                                                                                                                  EXHIBIT
      10.33  


    FREEPORT-McMoRan
      COPPER & GOLD INC.

    


    PERFORMANCE-BASED

    RESTRICTED
      STOCK UNIT AGREEMENT

    UNDER
      THE 2003 STOCK INCENTIVE PLAN

    


    


    AGREEMENT
      dated as of ____________, 20__ (the “Grant Date”), between Freeport-McMoRan
      Copper & Gold Inc., a Delaware corporation (the “Company”), and
      _______________ (the “Participant”).

     

    1.  (a)           Pursuant
      to the Freeport-McMoRan Copper & Gold Inc. 2003 Stock Incentive Plan (the
“Plan”), the Participant is hereby granted effective the Grant Date _________
      restricted stock units (“Restricted Stock Units” or “RSUs”) on the terms and
      conditions set forth in this Agreement and in the Plan.

     

    (b)  Defined
      terms not otherwise defined herein shall have the meanings set forth in Section
      2 of the Plan.

     

    (c)  Subject
      to the terms, conditions, and restrictions set forth in the Plan and herein,
      each RSU granted hereunder represents the right to receive from the Company,
      on
      the respective scheduled vesting date for such RSU set forth in Section 2(a)
      of
      this Agreement or on such earlier date as provided in Section 2(b) of this
      Agreement or Section 5(b) of this Agreement (the “Vesting Date”), one share (a
“Share”) of common stock of the Company (“Common Stock”), free of any
      restrictions, all amounts notionally credited to the Participant’s Dividend
      Equivalent Account (as defined in Section 4 of this Agreement) with respect
      to
      such RSU, and all securities and property comprising all Property Distributions
      (as defined in Section 4 of this Agreement) deposited in such Dividend
      Equivalent Account with respect to such RSU.

     

    (d)  Provided
      the condition of Section 6 of this Agreement, if applicable, has been met,
      as
      soon as practicable after the Vesting Date (but no later than 2 1⁄2 months from
      such date) for any RSUs granted hereunder, the Participant shall receive from
      the Company the number of Shares to which the vested RSUs relate, free of any
      restrictions, a cash payment for all amounts notionally credited to the
      Participant’s Dividend Equivalent Account with respect to such vested RSUs, and
      all securities and property comprising all Property Distributions deposited
      in
      such Dividend Equivalent Account with respect to such vested RSUs.

     

    2.  (a)           The
      RSUs granted hereunder are granted to the Participant in accordance with the
      Participant’s election (the “Election”) to receive RSUs in lieu of certain cash
      bonus payments awarded under the Company’s 2005 Annual Incentive Plan, which
      Election was made within the time period required by Section 409A of the
      Code.  Provided the condition of Section 6 of this Agreement has been
      met, the RSUs granted hereunder shall vest in installments as
      follows:

     

    Scheduled
      Vesting
      Date                                                 Number
      of RSUs

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    (b)  Notwithstanding
      Section 2(a) of this Agreement, at such time as there shall be a Change in
      Control of the Company, all unvested RSUs shall be accelerated and shall
      immediately vest.

     

    (c)  Until
      the
      respective Vesting Date for an RSU granted hereunder, such RSU, all amounts
      notionally credited in any Dividend Equivalent Account related to such RSU,
      and
      all securities or property comprising all Property Distributions deposited
      in
      such Dividend Equivalent Account related to such RSU shall be subject to
      forfeiture as provided in Section 5 of this Agreement.

     

    3.  Except
      as
      provided in Section 4 of this Agreement, an RSU shall not entitle the
      Participant to any incidents of ownership (including, without limitation,
      dividend and voting rights) in any Share until the RSU shall vest and the
      Participant shall be issued the Share to which such RSU relates nor in any
      securities or property comprising any Property Distribution deposited in a
      Dividend Equivalent Account related to such RSU until such RSU
      vests.

     

    4.  From
      and
      after the Grant Date of an RSU until the issuance of the Share payable in
      respect of such RSU, the Participant shall be credited, as of the payment date
      therefor, with (i) the amount of any cash dividends and (ii) the amount equal
      to
      the Fair Market Value of any Shares, Subsidiary securities, other securities,
      or
      other property distributed or distributable in respect of one share of Common
      Stock to which the Participant would have been entitled had the Participant
      been
      a record holder of one share of Common Stock at all times from the Grant Date
      to
      such issuance date (a “Property Distribution”).  All such credits
      shall be made notionally to a dividend equivalent account (a “Dividend
      Equivalent Account”) established for the Participant with respect to all RSUs
      granted hereunder with the same Vesting Date.  All credits to a
      Dividend Equivalent Account for the Participant shall be notionally increased
      by
      the Account Rate (as hereinafter defined), compounded quarterly, from and after
      the applicable date of credit until paid in accordance with the provisions
      of
      this Agreement.  The “Account Rate” shall be the prime commercial
      lending rate announced from time to time by JPMorgan Chase Bank or by another
      major national bank headquartered in New York, New York designated by the
      Committee.  The Committee may, in its discretion, deposit in the
      Participant’s Dividend Equivalent Account the securities or property comprising
      any Property Distribution in lieu of crediting such Dividend Equivalent Account
      with the Fair Market Value thereof.

     

    5.  (a)           Except
      as set forth in Section 5(b) of this Agreement, all unvested RSUs provided
      for
      in this Agreement, all amounts credited to the Participant’s Dividend Equivalent
      Accounts with respect to such RSUs, and all securities and property comprising
      Property Distributions deposited in such Dividend Equivalent Accounts with
      respect to such RSUs shall immediately be forfeited on the date the Participant
      ceases to be an Eligible Individual (the “Termination Date”).

     

    (b)  Notwithstanding
      the foregoing, and provided the condition of Section 6 of this Agreement has
      been met, if the Participant ceases to be an Eligible Individual (the
“Termination”) by reason of the Participant’s death, Disability, or Retirement,
      all the unvested RSUs granted hereunder, all amounts credited to the
      Participant’s Dividend Equivalent Accounts with respect to such RSUs, and all
      securities and property comprising Property Distributions deposited in such
      Dividend Equivalent Accounts with respect to such RSUs shall vest as of the
      

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    Participant’s
      Termination Date.  In the event that the Participant ceases to be an
      Eligible Individual by reason of the Participant’s Termination by his employer
      or principal without Cause, and provided the condition of Section 6 of this
      Agreement has been met, the Committee, or any person to whom the Committee
      has
      delegated authority, may, in its or his sole discretion, determine that all
      or
      any portion of the unvested RSUs granted hereunder, all amounts credited to
      the
      Participant’s Dividend Equivalent Accounts with respect to such RSUs, and all
      securities and property comprising Property Distributions deposited in such
      Dividend Equivalent Accounts with respect to such RSUs shall vest as of the
      Participant’s Termination Date.  In the event vesting is accelerated
      pursuant to this Section 5(b) and the Participant is a Key Employee, a
      distribution of Shares issuable to the Participant, all amounts notionally
      credited to the Participant’s Dividend Equivalent Account, and all securities
      and property comprising all Property Distributions deposited in such Dividend
      Equivalent Account due the Participant upon the vesting of the RSUs shall not
      occur until six months after the Participant’s Termination Date, unless the
      Participant’s Termination is due to death or Disability.

     

    6.  The
      other
      provisions of this Agreement notwithstanding, no unvested RSU granted hereunder
      shall vest on its scheduled Vesting Date under Section 2(a) of this Agreement
      or
      upon the Participant’s Termination pursuant to Section 5(b) of this Agreement
      unless the average of the Return on Investment for the five calendar years
      preceding the year in which such event occurs is at least 6% and, if required
      or
      deemed necessary to satisfy the requirements to qualify such RSU as
“performance-based compensation” under Section 162(m), the appropriate members
      of the Committee shall have certified that such condition has been
      met.  Any unvested RSUs that do not vest upon the occurrence of any of
      such events as a result of the failure to meet the condition of this Section
      6,
      all amounts credited to the Participant’s Dividend Equivalent Accounts with
      respect to such RSUs, and all securities and property comprising Property
      Distributions deposited in such Dividend Equivalent Accounts with respect to
      such RSUs shall immediately be forfeited.

     

    7.  The
      RSUs
      granted hereunder, any amounts notionally credited in the Participant’s Dividend
      Equivalent Accounts, and any securities and property comprising Property
      Distributions deposited in such Dividend Equivalent Accounts are not
      transferable by the Participant otherwise than by will or by the laws of descent
      and distribution or pursuant to a domestic relations order, as defined in the
      Code.

     

    8.  All
      notices hereunder shall be in writing and, if to the Company, shall be delivered
      personally to the Secretary of the Company or mailed to its principal office,
      1615 Poydras Street, New Orleans, Louisiana 70112, addressed to the attention
      of
      the Secretary; and, if to the Participant, shall be delivered personally or
      mailed to the Participant at the address on file with the
      Company.  Such addresses may be changed at any time by notice from one
      party to the other.

     

    9.  This
      Agreement is subject to the provisions of the Plan.  The Plan may at
      any time be amended by the Board, except that any such amendment of the Plan
      that would materially impair the rights of the Participant hereunder may not
      be
      made without the Participant’s consent.  The Committee may amend this
      Agreement at any time in any manner that is not inconsistent with the terms
      of
      the Plan and that will not result in the application of Section 409A(a)(1)
      of
      the Code.  Notwithstanding the foregoing, no such amendment may
      materially impair the rights of 

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    the
      Participant hereunder without the Participant’s consent.  Except as
      set forth above, any applicable determinations, orders, resolutions or other
      actions of the Committee shall be final, conclusive and binding on the Company
      and the Participant.

     

    10.  The
      Participant is required to satisfy any obligation in respect of withholding
      or
      other payroll taxes resulting from the vesting of any RSU granted hereunder
      or
      the payment of any securities, cash, or property hereunder, in accordance with
      procedures established by the Committee, as a condition to receiving any
      securities, cash payments, or property resulting from the vesting of any RSU
      or
      otherwise.

     

    11.  Nothing
      in this Agreement shall confer upon the Participant any right to continue in
      the
      employ of the Company or any of its Subsidiaries, or to interfere in any way
      with the right of the Company or any of its Subsidiaries to terminate the
      Participant’s employment relationship with the Company or any of its
      Subsidiaries at any time.

     

    12.  As
      used
      in this Agreement, the following terms shall have the meanings set forth
      below.

     

    (a)  “Cause”
      shall mean any of the following: (i) the commission by the Participant of an
      illegal act (other than traffic violations or misdemeanors punishable solely
      by
      the payment of a fine), (ii) the engagement of the Participant in dishonest
      or
      unethical conduct, as determined by the Committee or its designee, (iii) the
      commission by the Participant of any fraud, theft, embezzlement, or
      misappropriation of funds, (iv) the failure of the Participant to carry out
      a
      directive of his superior, employer or principal, or (v) the breach of the
      Participant of the terms of his engagement.

     

    (b)  “Change
      in Control” shall mean a change in the ownership of the Company, a change in the
      effective control of the Company or a change in the ownership of a substantial
      portion of the assets of the Company as provided under Section 409A of the
      Code,
      as amended from time to time, and any related implementing regulations or
      guidance.

     

    (c)  “Disability”
      shall have occurred if the Participant is (i) unable to engage in any
      substantial gainful activity by reason of any medically determinable physical
      or
      mental impairment which can be expected to result in death or can be expected
      to
      last for a continuous period of not less than 12 months, or (ii) by reason
      of
      any medically determinable physical or mental impairment which can be expected
      to result in death or can be expected to last for a continuous period of not
      less than 12 months, receiving income replacement benefits for a period of
      not
      less than 3 months under an accident and health plan covering employees of
      the
      Participant’s employer.

     

    (d)  “Fair
      Market Value” shall, with respect to a share of Common Stock, a Subsidiary
      security, or any other security, have the meaning set forth in the
      Freeport-McMoRan Copper & Gold Inc. Policies of the Committee applicable to
      the 2003 Stock Incentive Plan, and, with respect to any other property, mean
      the
      value thereof determined by the board of directors of the Company in connection
      with declaring the dividend or distribution thereof.

     

    (e)  “Key
      Employee” shall mean any employee who meets the definition of “key employee” as
      defined in Section 416(i) of the Code.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

    (f)  “Managed
      Net Income” shall mean, with respect to any year, the sum of (i) the net income
      (or net loss) of the Company and its consolidated subsidiaries for such year
      as
      reviewed by the Company’s independent auditors and released by the Company to
      the public; plus (or minus) (ii) the minority interests’ share in the net income
      (or net loss) of the Company’s consolidated subsidiaries for such year as
      reviewed by the Company’s independent auditors and released by the Company to
      the public; plus (or minus) (iii) the effect of changes in accounting principles
      of the Company and its consolidated subsidiaries for such year plus (or minus)
      the minority interests’ share in such changes in accounting principles as
      reviewed by the Company’s independent auditors and released by the Company to
      the public.

     

    (g)  “Net
      Cash
      Provided by Operating Activities” shall mean, with respect to any year, the net
      cash provided by operating activities of the Company and its consolidated
      subsidiaries for such year as reviewed by the Company’s independent auditors and
      released by the Company to the public.

     

    (h)  “Net
      Interest Expense” shall mean, with respect to any year, the net interest expense
      of the Company and its consolidated subsidiaries for such year as reviewed
      by
      the Company’s independent auditors and released by the Company to the
      public.

     

    (i)  “Retirement”
      shall mean early, normal or deferred retirement of the Participant under a
      tax
      qualified retirement plan of the Company or any other cessation of the provision
      of services to the Company or a Subsidiary by the Participant that is deemed
      by
      the Committee or its designee to constitute a retirement.

     

    (j)  “Return
      on Investment” shall mean, with respect to any year, the result (expressed as a
      percentage) calculated according to the following formula:

     

    a
      + (b
      - c)

    d

    


    in
      which
“a” equals Managed Net Income for such year, “b” equals Net Interest Expense for
      such year, “c” equals Tax on Net Interest Expense for such year, and “d” equals
      Total Investment of Capital for such year.

    


    (k)  “Tax
      on
      Net Interest Expense” shall mean, with respect to any year, the tax on the net
      interest expense of the Company and its consolidated subsidiaries for such
      year
      calculated at the appropriate statutory income tax rate for such year as
      reviewed by the Company’s independent auditors.

     

    (l)  “Total
      Investment of Capital” shall mean, with respect to any year, the sum of (i) the
      weighted average of the stockholders’ equity in the Company and its consolidated
      subsidiaries for such year, (ii) the weighted average of the minority interests
      in the consolidated subsidiaries of the Company for such year, (iii) the
      weighted average of the redeemable preferred stock of the Company for such
      year
      and (iv) the weighted average of the long-term debt of the Company and its
      consolidated subsidiaries for such year, all as shown in the quarterly balance
      sheets of the Company and its consolidated subsidiaries for such
      year.

     


    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
      day,
      month, and year first above written.

    


    FREEPORT-McMoRan
      COPPER & GOLD
      INC.

    


    


    By: ___________________________________     

    


        
      _______________________________

    (Participant)

     
      _______________________________

    (Street
      Address)

     
      _______________________________

    (City)
      (State) (Zip
      Code)


    
      
        
        

      

      
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