ex10-35.htm


    
      
        

      
Exhibit 10.35

      FREEPORT-MCMORAN
COPPER & GOLD INC.

       

      2005
SUPPLEMENTAL EXECUTIVE CAPITAL ACCUMULATION PLAN

       

      AMENDMENT
ONE

       

      WHEREAS, Freeport-McMoRan
Copper & Gold Inc. (“Company”) maintains the Freeport-McMoRan Copper &
Gold Inc. 2005 Supplemental Executive Capital Accumulation Plan, amended and
restated effective January 1, 2009 (the “Plan”);

       

      WHEREAS, Freeport-McMoRan
Corporation (“FMC”), a subsidiary of the Company, maintains the Freeport-McMoRan
Corporation Supplemental Savings Plan (“SSP”), which includes a Trust Agreement
between FMC and Charles Schwab Trust Company establishing the Phelps Dodge
Corporation Supplemental Savings Plan Trust (the “Trust”);

       

      WHEREAS, the SSP account
balances as of June 30, 2009 were transferred to the SECAP (“SSP
Accounts”);

       

      WHEREAS, the Company desires
to recognize the merger of the SSP into the Plan, effective July 1,
2009;

       

      WHEREAS, the Company desires to
amend the Plan to incorporate certain provisions of the SSP as they pertain to
the SSP Accounts, revise the claims procedures and make other clarifications and
improvements;

       

      WHEREAS, the Board of
Directors, in its meeting on December 2, 2008, delegated to the Retirement Plan
Administration and Investment Committee (the “Committee”) the authority to
approve the merger of plans and plan amendments, that it deems necessary or
desirable, provided that such merger or amendment does not result in a
substantial increase in the estimated annual cost to the Company and it
affiliates;

       

      WHEREAS, pursuant to Section
10.04 of the Plan, the Board or its delegate, has the authority to amend the
Plan;

       

      NOW, THEREFORE, the Plan is
amended effective as stated, to read as follows:

       

      I.

       

      Paragraph
(a), Basic
Credit Deferral Election of Section 3.00, Deferral
Election, is amended and restated effective January 1, 2009, to read as
follows.

       

      
        	
                 
      

              	
                (a)

              	
                Basic
      Credits Deferral Election.  Each Eligible Employee (as
      defined in Section 2.00) may elect prior to the first day of each Plan
      Year to defer a percentage of his Basic Compensation for each pay period
      in which the Eligible Employee’s deferrals under the FCX-ECAP have ceased
      due to application of Code Sections 401(a)(17) or Sections 402(g); and
      414(v), if applicable. The Code Section 401(a)(17) amount for Plan Years
      2009 and 2010 is $245,000, the Code Section 402(g) amount for Plan Years
      2009 

              


      

       

      
        
          
          

        

        
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                  and
      2010 is $16,500 and the Code Section 414(v) amount for Plan Years 2009 and
      2010 is $5,500.  The amount of allowable deferral pursuant to
      the Participant’s election shall be a minimum of one percent (1%), and in
      increments of at least one-half of one percent (1/2%), but not to exceed
      twenty percent (20%).  Further, the elected deferral must be the
      same percentage such Employee elected to defer into the
      FCX-ECAP.

                


        

         

      

      II.

       

      Paragraph
(a) of Section 4.00, FCX-SECAP
Company Matching Contribution Credit, is amended and restated effective
January 1, 2009, to read as follows:

       

      
        	
                 
      

              	
                (a)

              	
                Concurrently
      with the crediting of the FCX-SECAP Basic Credit to an Eligible Employee’s
      Account, the Participating Company shall credit a FCX-SECAP Company
      Matching Contributions Credit to the Participant’s FCX-SECAP Company
      Matching Contributions Credit Account.  The FCX-SECAP Company
      Matching Contributions Credit shall be equal to the Participant’s
      FCX-SECAP Basic Credit, but limited to five percent (5%) of [(A) minus
      (B)] when (A) equals such Participant’s Basic Compensation and (B) equals
      the Code Section 401(a)(17) dollar limit for the applicable
      year.  Prior to 2009, Company Matching Contribution Credits were
      named Company Savings Contribution
Credits.

              


      

       

      III.           

       

      Section
6.00, Distribution
Upon Separation from Service, is amended and restated, effective January
1, 2010 to read as follows:

      


      6.00           Distribution
Upon Separation from Service.  The total vested value of a
Participant’s Accounts will be paid as soon as practicable following Separation
from Service.  Notwithstanding, if a Participant elected on or before
December 31, 2008 to defer payment, the total value of the Participant’s vested
Accounts will be paid by February 28th of the year following the year in which
such Participant Separates from Service.  Any Eligible Employee who
was automatically eligible to receive Enhanced Company Contribution Credits in
2009 but was not eligible to defer a percentage of his or her Basic Compensation
will be deemed to have elected to receive payment upon Separation from
Service.  Once made, the distribution payment election, or default
payment election, shall continue in force indefinitely for all of the
Participant’s Accounts.

      


      Notwithstanding,
if the Participant is a Specified Employee payment shall not be made earlier
than the first business day that is six 

       

      
        
          
          

        

        
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      months
after the Participant’s Separation from Service or, if earlier, the date of
death of the Participant.

      


      IV.

       

      Paragraphs
(a) and (b) of Section 6.01, Timing of
Payment, are hereby deleted and paragraph (c) becomes the only paragraph
at Section 6.01.

      


      


      V.

       

      ARTICLE IX, Claims
Procedures, is amended and restated, effective January 1, 2010, to read
as follows:

      


      9.00           Claims
Procedures.

      


      
        	
                 
      

              	
                (a)

              	
                If
      a claimant is dissatisfied with the determination of his or her benefits,
      eligibility, participation, service, or any other interest in the Plan,
      the claimant may submit a written request for a review of such
      determination to the Retirement Manager of the Company.  The
      Retirement Manager of the Company will review the claim and will notify
      the claimant as to whether such claim has been granted or denied within 90
      days (unless the claimant is advised that special circumstances require an
      extension of time).

              


      

       

      
        	
                 
      

              	
                (b)

              	
                If
      the claim is denied, the claimant will receive written or electronic
      notice of the adverse benefit determination explaining the denial in
      detail.  The notice will include: (i) specific reason(s) for the
      denial; (ii) specific references to the Plan provision(s) on which the
      denial is based; (iii) whether any additional material or information is
      required; and (iv) explanation of the Plan’s review and appeal
      procedures.

              


      

       

      
        	
                 
      

              	
                (c)

              	
                The
      claimant has the right to appeal a denied claim.  The claimant,
      his authorized representative, or beneficiary may file a written request
      for review of the claim with the Plan Administrator within 60 days after
      receipt of notification of the claim denial.  As part of the
      claimant’s request for review, the claimant will have the opportunity to
      review pertinent documents and submit issues and comments in writing for
      consideration.

              


      

       

      
        	
                 
      

              	
                (d)

              	
                The
      Plan Administrator will hear and make a determination on the claimant’s
      appeal at the meeting that immediately follows receipt of the request for
      review, unless the appeal is received within 30 days preceding the date of
      such meeting in which case the appeal may be heard and decided at the
      second meeting following receipt of the request for appeal. The claimant
      will be notified of the 

              


      

       

      
        
          
          

        

        
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      decision on appeal no later than five (5) days after such decision
is made.

       

      
        	
                 
      

              	
                (e)

              	
                No
      legal action for recovery of benefits may be commenced before a claimant
      has exhausted the claims and claims review procedure described
      above.  Any legal action for recovery of benefits under this
      Plan must be commenced no later than the earlier of:  (1) the
      shortest applicable statute of limitations provided by law; or (2) two
      years from the date the decision on appeal is
  delivered.

              


      

       

      VI.

       

      Effective
July 1, 2009, the SECAP is modified by the addition of an Appendix (attached
hereto) to incorporate certain provisions that pertain to the SSP Accounts that
were transferred to the SECAP from the SSP.

       

      APPENDIX

      TO

      INCORPORATE
CERTAIN PROVISIONS

      FROM
THE FREEPORT-MCMORAN CORPORATION

      SUPPLEMENTAL
SAVINGS PLAN

      


      Effective
July 1, 2009, the Plan is amended to incorporate certain provisions that only
apply to the SSP Participant.

       

      1.01           Definitions
– The following definitions apply for purposes of this Appendix.

       

      
        	
                (a)  

              	
                Affiliate
      means Freeport-McMoRan Corporation (“FMC”) and all members of a controlled
      group of corporations (within the meaning of Code Section 414(b)) that
      includes FMC, all trades or business (whether or not incorporated) that
      are included in a group of trades or businesses under the common control
      (within the meaning of Code Section 414(c)) of FMC; all members of an
      affiliated service group (within the meaning of Code Section 414(m)) that
      includes FMC; and any other entity required to be aggregated with FMC
      under Code Section 414(o).

              


      

       

      
        	
                (b)  

              	
                Beneficiary
      means the person or trust that a SSP Participant, in his most recent
      written designation on file, shall have designated to receive his SSP
      Account in the event of his death.

              


      

       

      
        	
                (c)  

              	
                SSP
      means the Freeport-McMoRan Corporation Supplemental Savings
      Plan.

              


      

       

      
        	
                (d)  

              	
                SSP
      Account means the bookkeeping account balances as of June 30, 2009
      that were transferred to this Plan from the Freeport-McMoRan Corporation
      Supplemental Savings Plan and credited for earnings attributable
      thereto.

              


      

       

      
        
          
          

        

        
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                (e)  

              	
                SSP
      Participant means a Participant in the Plan that was a participant
      in the SSP and whose SSP Account was transferred to the Plan, effective
      July 1, 2009.

              


      

       

      
        	
                (f)  

              	
                Trust
      Agreement means that certain trust agreement established pursuant
      to the Plan between the Company and the Trustee or any trust agreement
      hereafter established, the provisions of which are incorporated herein by
      reference.

              


      

       

      
        	
                (g)  

              	
                Trustee
      means Charles Schwab Trust Company.

              


      

       

      
        	
                (h)  

              	
                Trust
      Fund means all assets held by the Trustee pursuant to the Trust
      Agreement solely for the purpose of paying the SSP Accounts to the SSP
      Participants.

              


      

       

      1.02           Earnings.  The
Participant’s SSP Account shall be treated as if invested by the Committee in a
manner to produce a rate of interest equal to the prime rate, as published in
the Federal Reserve Statistical Report at the beginning of each
month.  The SSP Participant is not permitted to direct investments in
the Participant’s SSP Account.

       

      1.03           Timing
and Form of Payment.

       

      
        	
                (a)  

              	
                SSP
      Participant Election - Except as otherwise stated herein, the
      timing and form of payment shall be determined based upon the election
      made by the SSP Participant on or before December 31, 2008 on the form
      titled “Freeport-McMoRan Corporation Supplemental Savings Plan,
      Distribution Consent Form (Applies to Entire Account
      Balance)”.  The distribution options were (a) to elect to
      receive the SSP Account per an existing method of distribution on file or,
      if there was more than one form or date of payment on file, then an
      election was made to treat the entire account balance according to one of
      the elections on file; and (b), if currently employed, additional options
      were (i) receive in lump sum after termination of employment or (ii)
      receive in lump sum by February 28 in the year following termination of
      employment.

              


      

       

      
        	
                (b)  

              	
                Small
      Amounts - Notwithstanding, if upon the SSP Participant’s
      termination of employment or death, the value of his SSP Account is
      $10,000 or less, the Committee, regardless of any elections made by the
      SSP Participant, shall direct the Trustee to pay the benefits in the form
      of a single lump sum distribution on the last business day of February in
      the Plan Year following such termination of employment or
      death.

              


      

       

      
        	
                (c)  

              	
                Six-Month
      Payment Delay – Notwithstanding any provision herein, if the SSP
      Participant is a Specified Employee payment shall not be made earlier than
      the first business day that is six months after the Participant’s
      Separation from Service or, if earlier, the date of death of the
      Participant.

              


      

       

      
        
          
          

        

        
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                (d)  

              	
                Distribution
      upon Death.  Following the SSP Participant’s death,
      distributions will commence on the last business day of the February in
      the Plan Year following the end of the Plan Year in which the SSP
      Participant dies.  Distributions will be made to the
      Beneficiary, if any, designated by the SSP Participant, or if the SSP
      Participant is not survived by any such designated Beneficiary or there is
      no validly designated Beneficiary, the Beneficiary shall be the SSP
      Participant’s estate.  If the designated Beneficiary dies after
      the payment of benefits begin, then the Beneficiary for the remainder of
      the benefits payable shall be the estate of the
    Beneficiary.

              


      

       

      
        	
                (e)  

              	
                Special
      Payment Provision Applicable on Sale of Affiliate.  A SSP
      Participant who is employed by an Affiliate of FMC as of the date that the
      Affiliate ceases to be an Affiliate for purposes of this Plan due to a
      “change in the ownership or effective control” or “in the ownership of a
      substantial portion of the assets of” such Affiliate (as such terms are
      defined in Section 409A of the Code and the applicable Treasury
      Regulations thereunder) shall receive a distribution of his or her
      accounts thirty (30) business days following such date, regardless of any
      prior election made by the SSP
Participant.

              


      

       

      1.06           Vesting.  A
SSP Participant shall have a fully vested, nonforfeitable interest in his SSP
Account at all times.

       

      1.07           Status of
Trust Fund.  The Trust Fund is established to assist the
Company and the adopting Affiliates in meeting their obligations to the SSP
Participants and to provide the SSP Participants with a measure of protection in
certain limited instances.  In certain circumstances described in the
Trust Agreement, the assets of the Trust Fund may be used for the benefit of the
Company’s or an Affiliate’s creditors and, as a result, the Trust Fund is
considered to be part of the Company’s and the adopting Affiliate’s general
assets.  Benefit payments due under this Plan with respect to the
SSP Accounts shall either be paid from the Trust Fund or from the Company’s
or Affiliate’s general assets as directed by the Committee.  Despite
the establishment of the Trust Fund, it is intended that the Plan be considered
to be “unfunded” for purposes of ERISA and the Code.

       

      Executed  this 18th day of
December, 2009.

      


      FREEPORT-McMoRan COPPER & GOLD,
INC.

      


      


      /s/ William D.
Rech                                                                

      William D. Rech, Vice
President


      
        
           


        

        
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