exv10w2



 





Exhibit 10.2




       One N. Central Avenue, Phoenix, AZ 85004       (602) 366-8100




DATE




 




Dear :




Severance Agreement

(as amended and restated effective January 1, 2005)




Phelps Dodge Corporation (the “Corporation”) realizes that every employee has worried about the
possible loss of his job. For a senior executive, the limited number of comparable positions that
are likely to be available should the executive’s employment be involuntarily terminated adds to
this concern. While the Corporation does not expect that you would be involuntarily terminated, it
wants to assure you that if, after one full year of service, your employment is involuntarily
terminated under the circumstances described below you would receive a meaningful severance
benefit. For that reason, in consideration of your continued employment with the Corporation, the
Corporation agrees with you as follows:



     1. Severance Payment. If, after you have completed one full year of continuous
service, the Corporation terminates your employment other than for Cause or on account of Mandatory
Retirement (as such terms are defined below), the Corporation will pay you in a single lump sum an
amount equal to the higher of your annual base salary in effect on the date your employment
terminates. Any lump sum severance payment due to you pursuant to this Section 1 shall be paid to
you on the date of your termination of employment with the Corporation.



     2. Outplacement Services. If you are entitled to receive the basic benefit under this
Agreement, the Corporation will pay an additional amount up to a maximum of 15% of the amount
payable under paragraph 1 to provide you with outplacement services from any agency of your choice
which is reasonably acceptable to the Corporation.



     3. Benefits Continuation. If you are entitled to receive the basic benefit under this
Agreement, the Corporation will pay the cost of any continuation coverage available to you under
the Corporation’s group health plans for the lesser of 12 months or the period during which you
(and any of your dependents) are eligible for such coverage pursuant to Section 601 et seq. of the
Employee Retirement Income Security Act of 1974, as amended (the “Continued Coverage Period”). The
Continued Coverage Period begins, generally, on the day your employment terminates. If the
Corporation has agreed to continue your coverage pursuant to any other written agreement, however,
the Continued Coverage Period will not begin until your coverage terminates pursuant to that
agreement, provided that any such medical coverage under this Section 3 shall not continue after
December 31 of the second calendar year



 









 







commencing after the date of your termination. During the period beginning on your termination
of employment and ending on the last day of the Continued Coverage Period, the Corporation shall
also reimburse you for any premiums you pay to continue any life or disability insurance coverage
that the Corporation maintained for your benefit prior to the date your employment with the
Corporation terminated. Notwithstanding the foregoing, if any portion of the continuing life
insurance coverage described herein provides any benefit other than a death benefit to you, then
the Corporation shall pay to you a lump sum amount equal to the applicable reimbursement payments
for the Continued Coverage Period on the first business day after the six month anniversary of your
termination date.



     4. Definitions. For purposes of this Agreement, the following terms shall have the
meanings set forth below:



     (a) “Cause” shall mean (i) any willful violation or any gross neglect of your duties and
responsibilities which results in a material detriment to the Corporation and its subsidiaries,
taken as a whole, or (ii) any repeated willful violations or gross neglect of your duties and
responsibilities, regardless of whether such violations result in a material detriment to the
Corporation and its subsidiaries, taken as a whole, after the Corporation provides you with notice
of such violations.



     (b) “Mandatory Retirement” shall mean your retirement at age 65 or later at the direction of
the Company, provided that such involuntary retirement shall not violate the Age Discrimination in
Employment Act of 1967, as amended, or any other applicable Federal or state law.



     5. Cause and Voluntary Termination. No benefits shall be payable under this Agreement
in the event that the Corporation terminates your employment for Cause or on account of Mandatory
Retirement or you voluntarily terminate your employment (including your voluntary early or normal
retirement).



     6. Other Severance Benefits. Except as otherwise specifically provided in any other
plan, policy or agreement primarily intended to provide severance benefits, the Corporation’s sole
obligation to you on account of a termination of your employment is for the benefits, if any,
payable under this Agreement. Without limiting the foregoing, nothing in this Agreement shall be
construed to limit, reduce or restrict any right or entitlement you may have under the terms of any
employee benefit plan, policy or arrangement which is not primarily intended to provide severance
benefits.



     7. Employment at Will. This Agreement 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.



     8. Successors. This Agreement shall be binding upon and inure to the benefit of you,
your estate and the Corporation and any successor of the Corporation, but neither this Agreement
nor any rights arising hereunder may be assigned or pledged by you.



     9. Governing Law. This Agreement shall be governed by the laws of the State of New
York.



 









 





     10. No Duty to Mitigate. For purposes of receiving payments under this Agreement, you
are not under any duty to mitigate the damages resulting from your termination of employment. As a
result, you will receive the payment and the benefits provided by Sections 1, 2 and 3 regardless of
whether you search for or obtain other work. Under the law, though, your Continued Coverage Period
for purposes of Section 3 may terminate when you become eligible for certain other health care
coverage.



     11. American Jobs Creation Act of 2004. The Corporation and you acknowledge and agree
that all payments under this Agreement will be made in compliance with and subject to the
applicable requirements of Code Section 409A and the regulations and guidance of the Department of
the Treasury interpreting and implementing Code Section 409A.



     12. Effective Date. This Agreement, as amended and restated, is effective as of
January 1, 2005 and shall constitute the only severance agreement between you and the Corporation.



     13. Prior Amendments, Waivers. For the avoidance of doubt, this Agreement, as amended
and restated, is not intended to override any amendments or waivers previously entered into between
you and the Corporation with respect to this Agreement, or any benefits provided herein.



If you are in agreement with the foregoing, please so indicate by signing and returning to the
Corporation the enclosed copy of this letter, whereupon this letter shall constitute a binding
agreement between you and the Corporation.



	 	 	 	 	 
	 	Very truly yours,





PHELPS DODGE CORPORATION

 	 
	 	By  	 	 
	 	 	Senior Vice President-Human Resources 	 
	 	 	 	 
	 



	 	 	 	 	 	 	 
	Agreed:

	 	 	 	 	 	 
	 

	 	 

	 	 

Date	 	 






 









 





       One N. Central Avenue, Phoenix, AZ 85004       (602) 366-8100




DATE




 




Dear :




SEVERANCE AGREEMENT

(as amended and restated effective January 1, 2005)




Phelps Dodge Corporation (the “Corporation”) realizes that every employee has worried about the
possible loss of his job. For a senior executive, the limited number of comparable positions that
are likely to be available should the executive’s employment be involuntarily terminated adds to
this concern. While the Corporation does not expect that you would be involuntarily terminated, it
wants to assure you that if, after one full year of service, your employment is involuntarily
terminated under the circumstances described below you would receive a meaningful severance
benefit. For that reason, in consideration of your continued employment with the Corporation, the
Corporation agrees with you as follows:



     1. SEVERANCE PAYMENT. If, after you have completed one full year of continuous
service, the Corporation terminates your employment other than for Cause or on account of Mandatory
Retirement (as such terms are defined below) or you voluntarily terminate your employment on
account of Good Reason (as defined below), the Corporation will pay you in a single lump sum an
amount equal to the higher of your annual base salary in effect (i) on the date your employment
terminates or (ii) if applicable, immediately prior to the occurrence of an action or event which
results in your having Good Reason to terminate your employment. Any lump sum severance payment due
to you pursuant to this Section 1 shall be paid to you ten business days after your termination of
employment with the Corporation, except that if you are a “specified employee” within the meaning
of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), then such payment
shall be made on the first business day after the six month anniversary of your termination date.



     2. OUTPLACEMENT SERVICES. If you are entitled to receive the basic benefit under this
Agreement, the Corporation will pay an additional amount up to a maximum of 15% of the amount
payable under paragraph 1 to provide you with outplacement services from any agency of your choice
which is reasonably acceptable to the Corporation.



     3. BENEFITS CONTINUATION. If you are entitled to receive the basic benefit under this
Agreement, the Corporation will pay the cost of any continuation coverage available to you under
the Corporation’s group health plans for the lesser of 12 months or the period during which you
(and any of your dependents) are eligible for such coverage pursuant to Section 601



 









 







et seq. of the Employee Retirement Income Security Act of 1974, as amended (the “Continued
Coverage Period”). The Continued Coverage Period begins, generally, on the day your employment
terminates. If the Corporation has agreed to continue your coverage pursuant to any other written
agreement, however, the Continued Coverage Period will not begin until your coverage terminates
pursuant to that agreement, provided that any such medical coverage under this Section 3 shall not
continue after December 31 of the second calendar year commencing after the date of your
termination. During the period beginning on your termination of employment and ending on the last
day of the Continued Coverage Period, the Corporation shall also reimburse you for any premiums you
pay to continue any life or disability insurance coverage that the Corporation maintained for your
benefit prior to the date your employment with the Corporation terminated. Notwithstanding the
foregoing, if any portion of the continuing life insurance coverage described herein provides any
benefit other than a death benefit to you, then the Corporation shall pay to you a lump sum amount
equal to the applicable reimbursement payments for the Continued Coverage Period on the first
business day after the six month anniversary of your termination date.



     4. DEFINITIONS. For purposes of this Agreement, the following terms shall have the
meanings set forth below:



     (a) “Cause” shall mean (i) any willful violation or any gross neglect of your duties and
responsibilities which results in a material detriment to the Corporation and its subsidiaries,
taken as a whole, or (ii) any repeated willful violations or gross neglect of your duties and
responsibilities, regardless of whether such violations result in a material detriment to the
Corporation and its subsidiaries, taken as a whole, after the Corporation provides you with notice
of such violations.



     (b) “Good Reason” shall mean the occurrence of any of the following events, unless you shall
have given your written consent to the occurrence of such event:




     (i) a material reduction in your base salary unrelated to the financial results or
financial position of the Corporation; or




     (ii) a material reduction in your position, duties and responsibilities.



     Notwithstanding the foregoing, no termination of employment will be treated as being on
account of Good Reason unless you provide the Corporation with a written notice of your
termination, setting forth the basis for asserting a Good Reason termination, within 90 days of the
occurrence of the event giving rise to a Good Reason termination.



     (c) “Mandatory Retirement” shall mean your retirement at age 65 or later at the direction of
the Company, provided that such involuntary retirement shall not violate the Age Discrimination in
Employment Act of 1967, as amended, or any other applicable Federal or state law.



     5. CAUSE AND VOLUNTARY TERMINATION. No benefits shall be payable under this Agreement
in the event that the Corporation terminates your employment for Cause or on account of Mandatory
Retirement or you terminate your employment without Good Reason (including your voluntary early or
normal retirement).



     6. OTHER SEVERANCE BENEFITS. Except as otherwise specifically provided in any other
plan, policy or agreement primarily intended to provide severance benefits, the



 









 







Corporation’s sole obligation to you on account of a termination of your employment is for the
benefits, if any, payable under this Agreement. Without limiting the foregoing, nothing in this
Agreement shall be construed to limit, reduce or restrict any right or entitlement you may have
under the terms of any employee benefit plan, policy or arrangement which is not primarily intended
to provide severance benefits.



     7. EMPLOYMENT AT WILL. This Agreement 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.



     8. SUCCESSORS. This Agreement shall be binding upon and inure to the benefit of you,
your estate and the Corporation and any successor of the Corporation, but neither this Agreement
nor any rights arising hereunder may be assigned or pledged by you.



     9. GOVERNING LAW. This Agreement shall be governed by the laws of the State of New
York.



     10. NO DUTY TO MITIGATE. For purposes of receiving payments under this Agreement, you
are not under any duty to mitigate the damages resulting from your termination of employment. As a
result, you will receive the payment and the benefits provided by Sections 1, 2 and 3 regardless of
whether you search for or obtain other work. Under the law, though, your Continued Coverage Period
for purposes of Section 3 may terminate when you become eligible for certain other health care
coverage.



     11. AMERICAN JOBS CREATION ACT OF 2004. The Corporation and you acknowledge and agree
that all payments under this Agreement will be made in compliance with and subject to the
applicable requirements of Code Section 409A and the regulations and guidance of the Department of
the Treasury interpreting and implementing Code Section 409A.



     12. EFFECTIVE DATE. This Agreement, as amended and restated, is effective as of
January 1, 2005 and shall constitute the only severance agreement between you and the Corporation.



     13. PRIOR AMENDMENTS, WAIVERS. For the avoidance of doubt, this Agreement, as amended
and restated, is not intended to override any amendments or waivers previously entered into between
you and the Corporation with respect to this Agreement, or any benefits provided herein.



 









 





If you are in agreement with the foregoing, please so indicate by signing and returning to the
Corporation the enclosed copy of this letter, whereupon this letter shall constitute a binding
agreement between you and the Corporation.



	 	 	 	 	 
	 	Very truly yours,





PHELPS DODGE CORPORATION

 	 
	 	By  	 	 
	 	 	Senior Vice President-Human Resources 	 
	 	 	 	 
	 



	 	 	 	 	 	 	 
	Agreed:

	 	 	 	 	 	 
	 

	 	 

	 	 

Date	 	 






 









 






       One N. Central Avenue, Phoenix, AZ 85004       (602) 366-8100




DATE




 




Dear :




SEVERANCE AGREEMENT

(as amended and restated effective January 1, 2005)




Phelps Dodge Corporation (the “Corporation”) realizes that every employee has worried about the
possible loss of his job. For a senior executive, the limited number of comparable positions that
are likely to be available should the executive’s employment be involuntarily terminated adds to
this concern. While the Corporation does not expect that you would be involuntarily terminated, it
wants to assure you that if, after one full year of service, your employment is involuntarily
terminated under the circumstances described below you would receive a meaningful severance
benefit. For that reason, in consideration of your continued employment with the Corporation, the
Corporation agrees with you as follows:



     1. SEVERANCE PAYMENT. If, after you have completed one full year of continuous
service, the Corporation terminates your employment other than for Cause or on account of Mandatory
Retirement (as such terms are defined below), the Corporation will pay you in a single lump sum an
amount equal to the higher of your annual base salary in effect on the date your employment
terminates. Any lump sum severance payment due to you pursuant to this Section 1 shall be paid to
you ten business days after your termination of employment with the Corporation.



     2. OUTPLACEMENT SERVICES. If you are entitled to receive the basic benefit under this
Agreement, the Corporation will pay an additional amount up to a maximum of 15% of the amount
payable under paragraph 1 to provide you with outplacement services from any agency of your choice
which is reasonably acceptable to the Corporation.



     3. BENEFITS CONTINUATION. If you are entitled to receive the basic benefit under this
Agreement, the Corporation will pay the cost of any continuation coverage available to you under
the Corporation’s group health plans for the lesser of 12 months or the period during which you
(and any of your dependents) are eligible for such coverage pursuant to Section 601 et seq. of the
Employee Retirement Income Security Act of 1974, as amended (the “Continued Coverage Period”). The
Continued Coverage Period begins, generally, on the day your employment terminates. If the
Corporation has agreed to continue your coverage pursuant to any other written agreement, however,
the Continued Coverage Period will not begin until your



 









 







coverage terminates pursuant to that agreement, provided that any such medical coverage under
this Section 3 shall not continue after December 31 of the second calendar year commencing after
the date of your termination. During the period beginning on your termination of employment and
ending on the last day of the Continued Coverage Period, the Corporation shall also reimburse you
for any premiums you pay to continue any life or disability insurance coverage that the Corporation
maintained for your benefit prior to the date your employment with the Corporation terminated.
Notwithstanding the foregoing, if any portion of the continuing life insurance coverage described
herein provides any benefit other than a death benefit to you, then the Corporation shall pay to
you a lump sum amount equal to the applicable reimbursement payments for the Continued Coverage
Period on the first business day after the six month anniversary of your termination date.



     4. DEFINITIONS. For purposes of this Agreement, the following terms shall have the
meanings set forth below:



     a) “Cause” shall mean (i) any willful violation or any gross neglect of your duties and
responsibilities which results in a material detriment to the Corporation and its subsidiaries,
taken as a whole, or (ii) any repeated willful violations or gross neglect of your duties and
responsibilities, regardless of whether such violations result in a material detriment to the
Corporation and its subsidiaries, taken as a whole, after the Corporation provides you with notice
of such violations.



     (b) “Mandatory Retirement” shall mean your retirement at age 65 or later at the direction of
the Company, provided that such involuntary retirement shall not violate the Age Discrimination in
Employment Act of 1967, as amended, or any other applicable Federal or state law.



     5. CAUSE AND VOLUNTARY TERMINATION. No benefits shall be payable under this Agreement
in the event that the Corporation terminates your employment for Cause or on account of Mandatory
Retirement or you voluntarily terminate your employment (including your voluntary early or normal
retirement).



     6. OTHER SEVERANCE BENEFITS. Except as otherwise specifically provided in any other
plan, policy or agreement primarily intended to provide severance benefits, the Corporation’s sole
obligation to you on account of a termination of your employment is for the benefits, if any,
payable under this Agreement. Without limiting the foregoing, nothing in this Agreement shall be
construed to limit, reduce or restrict any right or entitlement you may have under the terms of any
employee benefit plan, policy or arrangement which is not primarily intended to provide severance
benefits.



     7. EMPLOYMENT AT WILL. This Agreement 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.



     8. SUCCESSORS. This Agreement shall be binding upon and inure to the benefit of you,
your estate and the Corporation and any successor of the Corporation, but neither this Agreement
nor any rights arising hereunder may be assigned or pledged by you.



     9. GOVERNING LAW. This Agreement shall be governed by the laws of the State of New
York.



 









 





     10. NO DUTY TO MITIGATE. For purposes of receiving payments under this Agreement, you
are not under any duty to mitigate the damages resulting from your termination of employment. As a
result, you will receive the payment and the benefits provided by Sections 1, 2 and 3 regardless of
whether you search for or obtain other work. Under the law, though, your Continued Coverage Period
for purposes of Section 3 may terminate when you become eligible for certain other health care
coverage.



     11. AMERICAN JOBS CREATION ACT OF 2004. The Corporation and you acknowledge and agree
that all payments under this Agreement will be made in compliance with and subject to the
applicable requirements of Code Section 409A and the regulations and guidance of the Department of
the Treasury interpreting and implementing Code Section 409A.



     12. EFFECTIVE DATE. This Agreement, as amended and restated, is effective as of
January 1, 2005 and shall constitute the only severance agreement between you and the Corporation.



     13. PRIOR AMENDMENTS, WAIVERS. For the avoidance of doubt, this Agreement, as amended
and restated, is not intended to override any amendments or waivers previously entered into between
you and the Corporation with respect to this Agreement, or any benefits provided herein.



If you are in agreement with the foregoing, please so indicate by signing and returning to the
Corporation the enclosed copy of this letter, whereupon this letter shall constitute a binding
agreement between you and the Corporation.



	 	 	 	 	 
	 	Very truly yours,





PHELPS DODGE CORPORATION

 	 
	 	By  	 	 
	 	 	Senior Vice President-Human Resources 	 
	 	 	 	 
	 



	 	 	 	 	 	 	 
	Agreed:

	 	 	 	 	 	 
	 

	 	 

	 	 

Date