exv10w2



 







Exhibit 10.2




     FIRST AMENDMENT (the “Amendment”) to the Change of Control Agreement (the
“Agreement”) dated as of                          , 200  , by and between [                    ] (the
“Executive”) and Phelps Dodge Corporation, a New York corporation (the
“Corporation”), dated as of                          , 2006. Terms used without definition herein shall have
the respective meanings set forth in the Agreement.



     WHEREAS, the Corporation entered into the Agreement with the Executive to enhance the best
interests of the Corporation and provide value to its shareholders by minimizing the risk of the
departure or distraction of the Executive to the detriment of the Corporation and its shareholders
in the context of a potential or actual Change of Control;



     WHEREAS, the Corporation expects to enter into a definitive agreement dated on or about June
25, 2006 (the “Combination Agreement”) pursuant to which the Corporation will combine with
Inco Limited pursuant to a plan of arrangement under the laws of Canada (the
“Transaction”);



     WHEREAS, the consummation of the Transaction will constitute a Change of Control for purposes
of the Agreement; and



     WHEREAS, pursuant to and in accordance with Section 11(g) of the Agreement, the Corporation
and the Executive have determined that, in light of and subject to the consummation of the
Transaction, it is in the mutual best interests of the Corporation, its shareholders and the
Executive to amend the Agreement to reduce certain of the Executive’s rights and entitlements under
the Agreement and to make the other changes set forth in this Amendment.



AMENDMENT




     NOW THEREFORE, in consideration of the premises and the mutual covenants and promises
contained herein and for other good and valuable consideration, the Corporation and the Executive
hereby agree as follows:




	1.	 	This Amendment shall be effective as of the Effective Time (as such term is defined in the
Combination Agreement of the Transaction). In the event that the Combination Agreement is
terminated prior to the occurrence of the Effective Time or if the Effective Time does not
otherwise occur on or prior to January 1, 2007, this Amendment shall be null and void ab
initio and shall have no force or effect.






The parties hereto acknowledge and agree that the Amendment shall apply solely with respect
to the Transaction and shall not apply with respect to any other transaction (including,
without limitation, any transaction that is consummated subsequent to the Transaction) that,
if consummated, would constitute a Change of Control for purposes of the Agreement.



 









 






	2.	 	The first paragraph of Section 1 of the Agreement is hereby amended to delete all sentences
following the first sentence thereof.






	3.	 	Section 5 of the Agreement is hereby amended to replace subsection (d) thereunder with the
following new subsection (d):






	 	“(d)	 	GOOD REASON. For purposes of this Change of Control
Agreement, the term “Good Reason” means that you have terminated your
employment with the Corporation and all subsidiaries of the Corporation on
account of one or more of the following events (and you have not agreed to
such event in writing):






	 	(i)	 	a material reduction in the duties and
responsibilities you held immediately prior to such Change of Control;






	 	(ii)	 	a reduction by the Corporation or any
subsidiary of the Corporation in your base salary or your target bonus
opportunity under the Corporation’s Annual Incentive Compensation Plan
(or any successor plan thereto) as in effect immediately prior to such
Change of Control;






	 	(iii)	 	a material reduction in the aggregate level
of benefits from those provided to you immediately prior to the Change
of Control under the Corporation’s employee benefit plans and
programs, not taking into account any reduction that is generally
applicable to all employees eligible to participate in any such plan
or program; or






	 	(iv)	 	the Corporation’s or any subsidiary’s
requiring you to be based anywhere other than a location within 50
miles of your location immediately prior to such Change of Control.”






	4.	 	The remaining provisions of the Agreement shall remain in full force and effect.






	5.	 	Miscellaneous






	 	(a)	 	Employment at Will. This Amendment shall neither obligate the Corporation or
any subsidiary of the Corporation to continue you in its employ (or to employ you in
any particular office or to perform any specified responsibility) nor obligate you to
continue in the employ of the Corporation or any subsidiary of the Corporation.






	 	(b)	 	Successors. This Amendment shall be binding upon and inure to the benefit of
the Executive, the Executive’s estate and the Corporation and any successor of the
Corporation, but neither this Amendment nor any rights arising hereunder may be
assigned or pledged by you.




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	 	(c)	 	Governing Law. This Amendment shall be governed by the laws of the State of New
York.






	 	(d)	 	Severability. If any provision of this Amendment as applied to either party or
to any circumstances shall be adjudged by a court of competent jurisdiction to be void
or unenforceable, the same shall in no way affect any other provision of this Amendment
or the validity or enforceability of this Amendment.






	 	(e)	 	Confidentiality. The Executive hereby agrees that he or she will not disclose
to any person or entity (other than to his or her personal legal advisor on a
need-to-know basis), the nature and content of any negotiations, discussions,
presentations or other communications with respect to this Amendment or, prior to the
public disclosure of this Amendment by the Corporation, the existence or the terms and
conditions of this Amendment.





          IN WITNESS WHEREOF, the Corporation has duly executed this Amendment by its authorized
representative and the Executive has hereunto set [his] [her] hand, in each case as of the date of
this Amendment.



	 	 	 	 	 	 	 
	 	 	PHELPS DODGE CORPORATION
	 
	 	 	 	 	 	 
	 
	 

	 	 
	 	By:	 	 
	 

	 	 	 	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title:	 	 
	 
	 	 	 	 	 	 
	 	 	EXECUTIVE:
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 
	 

	 	 	 	[Name]	 	 
	 

	 	 	 	[Title]	 	 







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