ex10-44.htm


    
      

    

    Exhibit 10.44

     

    FREEPORT-McMoRan
COPPER & GOLD INC.

    


    NOTICE
OF GRANT

    OF

    RESTRICTED
STOCK UNITS

    UNDER
THE ____ STOCK INCENTIVE PLAN

    


    1.  (a)           Pursuant
to the Freeport-McMoRan Copper & Gold Inc. ____ Stock Incentive Plan (the
“Plan”), on ____________, 20__ (the “Grant Date”), Freeport-McMoRan Copper &
Gold Inc., a Delaware corporation (the “Company”) granted _________ restricted
stock units (“Restricted Stock Units” or “RSUs”) to _______________ (the
“Participant”) on the terms and conditions set forth in this Notice 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 Notice or on such earlier date as provided in Section 2(b) of this Notice
or Section 5(b) of this Notice (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 Notice) with respect to such RSU, and all
securities and property comprising all Property Distributions (as defined in
Section 4 of this Notice) deposited in such Dividend Equivalent Account with
respect to such RSU.

     

    (d) 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 shall vest in installments as follows:

     

    
      	
              Scheduled Vesting Date

            	
              Number of RSUs

            
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	 
      
	 
      	 
      


    

    


     

    (b) Notwithstanding
Section 2(a) of this Notice, 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 Notice.

     

    3. Except as
provided in Section 4 of this Notice, 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 Notice.  The “Account Rate” shall be the prime commercial lending
rate announced from time to time by JPMorgan Chase Bank, N.A. 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 Notice, all unvested RSUs provided for in
this Notice, 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, if the Participant ceases to be an Eligible Individual (the
“Termination”) by reason of the Participant’s death, Disability, or Retirement,
the RSUs granted hereunder that are scheduled to vest on the first Vesting Date
following the Termination Date, 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 that the Participant ceases to be an
Eligible Individual by reason of the Participant’s Termination by his employer
or principal without Cause, the Committee or any person to whom the Committee
has delegated authority may, in its or his sole discretion, determine that the
RSUs granted hereunder that are scheduled to vest on 

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    the first
Vesting Date following the Termination Date, 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 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.

     

    7. 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 One North Central
Avenue, Phoenix, Arizona 85004, 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.

     

    8. This
Notice 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
Notice 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 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.

     

    9. 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.

     

    10. Nothing
in this Notice 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.

     

    
      
         


      

      
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    11. As used
in this Notice, 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 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.

     

    (f)           “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.

     

    FREEPORT-McMoRan
COPPER & GOLD INC.

     

    


     

    By:                                                                           

     


    
      
         


      

      
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