ex10-29.htm


    
      
        

      

    

    Exhibit 10.29

     

    
 

    Amended
and Restated

    Change
of Control Agreement

    


    This
Amended and Restated Change of Control Agreement (“Agreement”) between
Freeport-McMoRan Copper & Gold Inc., a Delaware corporation (the “Company”),
and James R. Moffett (the “Executive”) is dated effective as of December 2, 2008
(the “Change of Control Agreement Date”).

    


    W
I T N E S S E T H:

    


    WHEREAS,
the Executive and the Company are parties to that certain Change of Control
Agreement dated April 30, 2001, which was previously amended on December 10,
2003 (the “Original Agreement”);

     

    WHEREAS,
the Company and the Executive wish to amend the Original Agreement to (i) extend
the term of the Original Agreement, (ii) amend the Original Agreement to comply
with the final regulations under Section 409A of the Internal Revenue Code, as
amended, (iii) eliminate the excise tax gross-up payment previously provided to
the Executive, (iv) eliminate the Executives’ ability to receive benefits for a
voluntary termination during a specified window period, and (v) clarify certain
provision of the Original Agreement, including the definition of “bonus” used in
calculating the lump sum payment due upon certain terminations of
employment.

     

    NOW, THEREFORE, for and in
consideration of the continued employment of Executive by the Company and the
payment of salary, benefits and other compensation to Executive by the Company,
the parties hereto agree to amend and restate the Original Agreement to read as
follows:

    


    Article
I

    Executive
Employment Agreement; Definitions

    


    1.1           Executive Employment
Agreement.  Contemporaneous with a Change of Control (defined
below), this Agreement supersedes the Amended and Restated Executive Employment
Agreement dated effective as of December 2, 2008 between Executive and
the Company (the “Employment Agreement”), except to the extent that certain
provisions of the Employment Agreement are expressly incorporated by reference
herein.  After a Change of Control, the definitions in this Agreement
supersede definitions in the Employment Agreement, but capitalized terms used
herein that are not defined in this Agreement shall have the meanings given to
them in the Employment Agreement.

    


    1.2           Company.  As used in
this Agreement, “Company” means the Company as defined above and any successor
to or assignee of (whether direct or indirect, by purchase, merger,
consolidation or otherwise) all or substantially all of the assets of the
Company.

    


    1.3           Change of
Control.  (a) “Change of Control” means (capitalized terms not
otherwise defined will have the meanings ascribed to them in paragraph (b)
below):


    
      
         


      

      
         


        
          

        

      

      
         


      

    

    


    (i)           the
acquisition by any Person together with all Affiliates of such Person, of
Beneficial Ownership of the Threshold Percentage or more; provided, however,
that for purposes of this Section 1.3(a)(i), the following will not constitute a
Change of Control:

    


    (A)           any
acquisition (other than a “Business Combination,” as defined below, that
constitutes a Change of Control under Section 1.3(a)(iii) hereof) of Common
Stock directly from the Company,

    


    (B)           any
acquisition of Common Stock by the Company or its subsidiaries,

    


    (C)           any
acquisition of Common Stock by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation or other entity
controlled by the Company, or

    


    (D)           any
acquisition of Common Stock pursuant to a Business Combination that does not
constitute a Change of Control under Section 1.3(a)(iii) hereof; or

    


    (ii)           individuals
who as of the effective date of this Agreement, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the effective date of this Agreement whose election, or nomination for election
by the Company’s shareholders, was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board will be considered a member of
the Incumbent Board, unless such individual’s initial assumption of office
occurs as a result of an actual or threatened election contest with respect to
the election or removal of directors or any other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other than the
Incumbent Board; or

    


    (iii)           the
consummation of a reorganization, merger or consolidation (including a merger or
consolidation of the Company or any direct or indirect subsidiary of the
Company), or sale or other disposition of all or substantially all of the assets
of the Company (a “Business Combination”), in each case, unless, immediately
following such Business Combination:

    


    (A)           the
individuals and entities who were the Beneficial Owners of the Company Voting
Stock immediately prior to such Business Combination have direct or indirect
Beneficial Ownership of more than 50% of the then outstanding shares of common
stock, and more than 50% of the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors, of
the Post-Transaction Corporation, and

    


    (B)           no
Person together with all Affiliates of such Person (excluding the
Post-Transaction Corporation and any employee benefit plan or related trust of
either the Company, the Post-Transaction Corporation or any subsidiary of either
corporation) Beneficially Owns 30% or more of the then outstanding shares of
common stock of the Post-Transaction Corporation or 30% or more of the combined
voting power of the then outstanding voting securities of the Post-Transaction
Corporation, and


    
      
         


      

      
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    (C)           at
least a majority of the members of the board of directors of the
Post-Transaction Corporation were members of the Incumbent Board at the time of
the execution of the initial agreement, and of the action of the Board,
providing for such Business Combination; or

    


    (iv)           approval
by the shareholders of the Company of a complete liquidation or dissolution of
the Company.

    


    (b)           As
used in this Section 1.3 and elsewhere in this Agreement, the following terms
have the meanings indicated:

    


    (i)           Affiliate:  “Affiliate”
means a Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, another
specified Person.

    


    (ii)           Beneficial
Owner:  “Beneficial Owner” (and variants thereof), with respect to a
security, means a Person who, directly or indirectly (through any contract,
understanding, relationship or otherwise), has or shares (A) the power to vote,
or direct the voting of, the security, and/or (B) the power to dispose of, or to
direct the disposition of, the security.

    


    (iii)           Common
Stock:  “Common Stock” means the common stock, $.10 par value per
share, of the Company

    


    (iv)           Company
Voting Stock:  “Company Voting Stock” means any capital stock of the
Company that is then entitled to vote for the election of
directors.

    


    (v)           Majority
Shares:  “Majority Shares” means the number of shares of Company
Voting Stock that could elect a majority of the directors of the Company if all
directors were to be elected at a single meeting.

    


    (vi)           Person:  “Person”
means a natural person or entity, and will also mean the group or syndicate
created when two or more Persons act as a syndicate or other group (including
without limitation a partnership, limited partnership, joint venture or other
joint undertaking) for the purpose of acquiring, holding, or disposing of a
security, except that “Person” will not include an underwriter temporarily
holding a security pursuant to an offering of the security.

    


    (vii)           Post-Transaction
Corporation:  Unless a Change of Control includes a Business
Combination, “Post-Transaction Corporation” means the Company after the Change
of Control.  If a Change of Control includes a Business Combination,
“Post-Transaction Corporation” will mean the corporation or other entity
resulting from the Business Combination unless, as a result of such Business
Combination, an ultimate parent entity controls the Company or all or
substantially all of the Company’s assets either directly or indirectly, in
which case, “Post-Transaction Corporation” will mean such ultimate parent
entity.


    
      
         


      

      
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    (viii)                      Threshold
Percentage: “Threshold Percentage “ means 30% of all then outstanding Common
Stock.

    


    1.4           Cause.  “Cause”
shall have the meaning ascribed in the Employment Agreement.

    


    1.5           Good Reason.  “Good
Reason” shall mean:

    


    (a)           Any
failure of the Post-Transaction Corporation to provide the Executive with the
position, authority, duties and responsibilities at least commensurate in all
material respects with the most significant of those held, exercised and
assigned at any time during the 120-day period immediately preceding the Change
of Control.  Executive’s position, authority, duties and
responsibilities after a Change of Control shall not be considered commensurate
in all material respects with Executive’s position, authority, duties and
responsibilities prior to a Change of Control unless after the Change of Control
the Executive holds an equivalent position in the Post-Transaction
Corporation;

    


    (b)           The
assignment to the Executive of any duties inconsistent in any material respect
with Executive’s position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as contemplated by Section
2.1(b) of this Agreement, or any other action that results in a diminution in
such position, authority, duties or responsibilities, excluding for this purpose
an isolated, insubstantial and inadvertent action not taken in bad faith that is
remedied within 10 days after receipt of written notice thereof from the
Executive to the Post-Transaction Corporation;

    


    (c)           Any
failure by the Post-Transaction Corporation or its Affiliates to comply with any
of the provisions of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith that is remedied within 10 days
after receipt of written notice thereof from the Executive to the
Post-Transaction Corporation;

    


    (d)           The
Post-Transaction Corporation or its Affiliates requiring the Executive to be
based at any office or location other than as provided in Section 2.2(b)(ii)
hereof, or requiring the Executive to travel on business to a substantially
greater extent than required immediately prior to the Change of Control;
or

    


    (e)           Any
failure by the Company to comply with and satisfy Sections 3.1(c) and (d) of
this Agreement.

    


    For
purposes of this Section 1.5, any determination of “Good Reason” made by the
Executive in good faith and based upon his reasonable belief and understanding
shall be conclusive.

    


    1.6           Code.  “Code” shall
mean the Internal Revenue Code of 1986, as amended from time to
time.


    
      
         


      

      
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    Article
II

    Change
of Control Benefit

    


    2.1           Term.  The term of
this Agreement will commence on the Change of Control Agreement Date and will
continue through December 31, 2008; provided, however, that commencing on
December 31, 2008, and each December 31 thereafter, the term of this Agreement
will automatically be extended for one additional year unless not later than
August 1 of the current year, the Corporate Personnel Committee of the Company’s
Board of Directors has given written notice to the Executive that it does not
wish to extend this Agreement.

    


    2.2           
Employment Term and Capacity
after Change of Control.  (a) If the Executive continues to
serve as an officer of the Company and a Change of Control occurs on or before
the expiration of the term of this Agreement, then the Executive’s employment
term (the “Employment Term”) shall continue through the third anniversary of the
Change of Control, subject to any earlier termination of Executive’s status as
an officer and employee pursuant to this Agreement.

    


    (b)           After
a Change of Control and during the Employment Term, (i) the Executive’s position
(including status, offices, titles and reporting requirements), authority,
duties and responsibilities shall be at least commensurate in all material
respects with the most significant of those held, exercised and assigned at any
time during the 120-day period immediately preceding the Change of Control and
(ii) the Executive’s services shall be performed at the location where the
Executive was employed immediately preceding the Change of Control or any office
or location less than 35 miles from such location.  Executive’s
position, authority, duties and responsibilities after a Change of Control shall
not be considered commensurate in all material respects with Executive’s
position, authority, duties and responsibilities prior to a Change of Control
unless after the Change of Control the Executive holds an equivalent position in
the Post-Transaction Corporation.  The Executive shall devote himself
to his employment responsibilities with the Post-Transaction Corporation as
provided in Article I Section 3 of the Employment Agreement.

    


    2.3           Compensation and
Benefits.  During the Employment Term, the Executive shall be
entitled to the following compensation and benefits:

    


    (a)           Salary.  An
annual salary (“Base Salary”) at the highest rate provided for under the
Employment Agreement at any time during the 120-day period immediately preceding
the Change of Control, but not less than $2,500,000 per year,  payable
to the Executive at such intervals no less frequent than the most frequent
intervals in effect at any time during the 120-day period immediately preceding
the Change of Control or, if more favorable to the Executive, the intervals in
effect at any time after the Change of Control for other most senior executives
of the Post-Transaction Corporation and its Affiliates.

    


    (b)           Bonus.  Executive
shall be entitled to participate in an annual incentive bonus program applicable
to other most senior executives of the Post-Transaction Corporation and its
Affiliates but in no event shall such program provide the Executive with
incentive opportunities less favorable than the most favorable of those provided
by the Company and its Affiliates for


    
      
         


      

      
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     the
Executive under the Company’s 2005 Annual Incentive Plan or similar plan as in
effect at any time during the 120-day period immediately preceding the Change of
Control or, if more favorable to the Executive, those provided generally at any
time after the Change of Control to other most senior executives of the
Post-Transaction Corporation and its Affiliates.

    


    (c)           Fringe
Benefits.  The Executive shall be entitled to fringe benefits
(including, but not limited to, automobile allowance, air travel, and
reimbursement for club membership dues) in accordance with the most favorable
agreements, plans, practices, programs and policies of the Company and its
Affiliates in effect for the Executive at any time during the 120-day period
immediately preceding the Change of Control or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to other
most senior executives of the Post-Transaction Corporation and its
Affiliates.

    


    (d)           Expenses.  The
Executive shall be entitled to receive prompt reimbursement for all reasonable
business expenses (including food and lodging) incurred by the Executive in
accordance with the most favorable agreements, policies, practices and
procedures of the Company and its Affiliates in effect for the Executive at any
time during the 120-day period immediately preceding the Change of Control or,
if more favorable to the Executive, as in effect generally at any time
thereafter with respect to other most senior executives of the Post-Transaction
Corporation and its Affiliates.

    


    (e)           Incentive, Savings and
Retirement Plans.  The Executive shall be entitled to
participate in all incentive, savings and retirement plans, practices, policies
and programs applicable generally to other most senior executives of the
Post-Transaction Corporation and its Affiliates, but in no event shall such
plans, practices, policies and programs provide the Executive with incentive
opportunities (measured with respect to both regular and special incentive
opportunities, to the extent, if any, that such distinction is applicable),
savings opportunities and retirement benefit opportunities, in each case, less
favorable than the most favorable of those provided by the Company and its
Affiliates for the Executive under any agreements, plans, practices, policies
and programs as in effect at any time during the 120-day period immediately
preceding the Change of Control.

    


    (f)           Welfare Benefit
Plans.  The Executive and the Executive’s family shall be
eligible for participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the Post-Transaction
Corporation and its Affiliates (including, without limitation, medical,
prescription, dental, disability, employee life, group life, accidental death
and travel accident insurance plans and programs) to the extent applicable
generally to other most senior executives of the Post-Transaction Corporation
and its Affiliates, but in no event shall such plans, practices, policies and
programs provide the Executive with benefits, in each case, less favorable than
the most favorable of any agreements, plans, practices, policies and programs of
the Company in effect for the Executive at any time during the 120-day period
immediately preceding the Change of Control.

    


    (g)           Indemnification and
Insurance.  The Post-Transaction Corporation shall indemnify
the Executive, to the fullest extent permitted by applicable law, for any and
all claims brought against him arising out his services during or prior to the
Employment Term.  In


    
      
         


      

      
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    addition,
the Post-Transaction Corporation shall maintain a directors’ and officers’
insurance policy covering the Executive substantially in the form of the policy
maintained by the Company and its Affiliates at any time during the 120-day
period immediately preceding the Change of Control or, if more favorable to the
Executive, as provided generally at any time thereafter with respect to other
most senior executives of the Post-Transaction Corporation and its
Affiliates.

    


    (h)           Office and Support
Staff.  The Executive shall be entitled to an office or offices
of a size and with furnishings and other appointments, and to exclusive personal
secretarial and other assistance, at least equal to the most favorable of the
foregoing provided to the Executive by the Company and its Affiliates at any
time during the 120-day period immediately preceding the Change of Control or,
if more favorable to the Executive, as provided generally at any time thereafter
with respect to other most senior executives of the Post-Transaction Corporation
and its Affiliates.

    


    (i)           Vacation.  The
Executive shall be entitled to paid vacation in accordance with the most
favorable agreements, plans, policies, programs and practices of the Company and
its Affiliates as in effect for the Executive at any time during the 120-day
period immediately preceding the Change of Control or, if more favorable to the
Executive, as in effect generally at any time thereafter with respect to other
most senior executives of the Post-Transaction Corporation and its
Affiliates.

    


    2.4           Termination of Employment after a
Change of Control.  After a Change of Control and during the
Employment Term, the Executive’s status as an officer and employee shall
terminate or may be terminated by the Executive or the Post-Transaction
Corporation as provided in Article III of the Employment Agreement (provided,
however, that the provisions regarding “Good Reason” herein shall supersede the
comparable provisions in the Employment Agreement).

    


    2.5           Obligations upon Termination after a
Change of Control.

    


    (a)           Death, Disability or
Retirement.  If, after a Change of Control and during the
Employment Term, (i) the Executive’s status as an officer and employee is
terminated by reason of the Executive’s death, (ii) the Post-Transaction
Corporation terminates the Executive’s status as an officer and employee by
reason of Executive’s Disability (as defined in the Employment Agreement), or
(iii) the Executive Retires (as defined in the Employment Agreement) and
terminates his status as an officer and employee, then, subject to the six-month
delay set forth in Section 2.9, if applicable:

    


    (i)           The
Post-Transaction Corporation will pay to the Executive or his legal
representatives the amount of the Executive’s Base Salary earned through the
Termination Date to the extent not previously paid (the “Accrued
Obligations”);

    


    (ii)           The
Post-Transaction Corporation will pay to the Executive or his legal
representatives a pro rata bonus (the “Pro Rata Bonus”) for the Fiscal Year in
which the Termination Date occurs, which shall be paid out at such time as
annual cash bonuses are paid to other senior executives, but no later than March
15th
of the year following in the year in which


    
      
         


      

      
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    the
Termination Date occurs.  The amount of the Pro Rata Bonus shall be
determined by multiplying (i) the bonus the Executive would have received under
the annual incentive bonus program applicable to other most senior executives of
the Post-Transaction Corporation and its Affiliates (as described in Section
2.3(b)) had Executive remained employed by the Post-Transaction Corporation
based on the level of achievement of the applicable performance goals, by (ii)
the fraction obtained by dividing the number of days in the year through the
Termination Date by 365.  To the extent that the Board of Directors of
the Post-Transaction Corporation, or a committee thereof, exercises negative
discretion in determining the amount of the bonuses generally payable to senior
executives under the annual incentive plan in place for the Fiscal Year in which
the Termination Date occurs, such negative discretion may not be applied in a
manner more adverse to the Executive than to other similarly situated active
senior executives of the Post-Transaction Corporation;

    


    (iii)           The
Post-Transaction Corporation will pay or deliver, as appropriate, all other
benefits due to Executive pursuant to any employee benefit plans and incentive
plans maintained by the Post-Transaction Corporation or its subsidiaries with
respect to services rendered by the Executive prior to the Termination
Date;

    


    (iv)           If
the Executive Retires (as defined in the Employment Agreement), for a period
commencing on the Termination Date and ending on the earlier of (A) the third
anniversary of the Termination Date, or (B) the date that the Executive accepts
new employment (the “Continuation Period”), the Post-Transaction Corporation
will at its expense maintain and administer for the continued benefit of
Executive all insurance and welfare benefit plans in which Executive was
entitled to participate as an employee as of the Termination Date, except
medical reimbursement benefits under the Company’s flex plans, provided that
Executive’s continued participation is possible under the general terms and
provisions of such plans and all applicable laws.  If the Executive is
a “specified employee” governed by Section 2.9, to the extent that any benefits
provided to the Executive under this Section 2.5 are taxable to the Executive,
then, with the exception of nontaxable medical insurance benefits, the value of
the aggregate amount of such taxable benefits provided to the Executive pursuant
to this Section 2.5 during the six-month period following the Termination Date
shall be limited to the amount specified by Section 402(g)(1)(B) of Code for the
year in which the termination occurred.  The Executive shall pay the
cost of any benefits that exceed the amount specified in the previous sentence
during the six-month period following the Termination Date, and shall be
reimbursed in full by the Post-Transaction Corporation during the seventh month
after the Termination Date.  The coverage and benefits (including
deductibles and costs) provided under any such benefit plan in accordance with
this paragraph during the Continuation Period will be no less favorable to
Executive than the most favorable of such coverages and benefits as of the
Termination Date.  If Executive’s participation in any such benefit
plan is barred or any such benefit plan is terminated, the Post-Transaction
Corporation will use commercially reasonable efforts to provide Executive with
compensation or benefits substantially similar or comparable in value to those
Executive would otherwise have been entitled to receive under such
plans.  At the end of the Continuation Period, the Executive will have
the option to have assigned to him, at no cost and with no apportionment of
prepaid premiums, any assignable insurance owned by the Post-Transaction
Corporation that relates specifically to the Executive.  Subject to
the general terms and provisions of the plans and all applicable laws, the
Executive will be eligible for coverage


    
      
         


      

      
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    under the
Post-Transaction Corporation’s retiree medical plan or the Consolidated Omnibus
Budget Reconciliation Act at the end of the Continuation Period or earlier
cessation of the Post-Transaction Corporation’s obligation under the foregoing
provisions of this paragraph.

    


    (b)           Cause.  If,
after a Change of Control and during the Employment Term, the Executive’s status
as an officer and employee is terminated by the Post-Transaction Corporation for
Cause, the Post-Transaction Corporation shall pay to the Executive the Accrued
Obligations without further obligation to the Executive other than for
obligations by law and obligations for any benefits due the Executive pursuant
to any employee benefit plans and incentive plans maintained by the
Post-Transaction Corporation or its Affiliates with respect to services rendered
by the Executive prior to the Termination Date.

    


    (c)           Termination by Executive for
Good Reason or by Company for Reasons other than Death, Disability or
Cause.  If, after a Change of Control and during the Employment
Term, the Executive terminates his status as an officer and employee for Good
Reason, or the Post-Transaction Corporation terminates the Executive’s status as
an officer and employee other than for death, Disability or Cause, then, subject
to the six-month delay set forth in Section 2.9, if applicable:

    


    (i)           The
Post-Transaction Corporation shall pay to the Executive the Accrued Obligations
and the Pro Rata Bonus;

    


    (ii)           Within
twenty (20) business days of the Termination Date, the Post-Transaction
Corporation shall pay to the Executive in a lump sum in cash an amount equal to
three times the sum of (A) the Executive’s Base Salary in effect at the
Termination Date and (B) the highest bonus paid to the Executive for any of the
immediately preceding three Fiscal Years, which bonus amounts shall not
including any premium received in connection with Executive’s participation in
any restricted stock program offered by the Company, but shall include the grant
date value of any equity awards granted to the Executive in lieu of a portion of
the bonus for a given year;

    


    (iii)           The
Post-Transaction Corporation will pay or deliver, as appropriate, all other
benefits due the Executive pursuant to any employee benefit plans and incentive
plans maintained by the Post-Transaction Corporation or its Affiliates with
respect to services rendered by the Executive prior to the Termination Date;
and

    


    (iv)           For
the Continuation Period, the Post-Transaction Corporation shall at its expense
maintain and administer for the continued benefit of Executive the benefits
provided for under Section 2.5(a)(iv).

    


    (d)           Resignation from Board of
Directors.  If the Executive is a director of the
Post-Transaction Corporation or any of its Affiliates and his status as an
officer and employee is terminated for any reason other than death, the
Executive shall, if requested by the Post-Transaction Corporation, immediately
resign as a director of the Post-Transaction Corporation and its
Affiliates.  If such resignation is not received within 20 business
days after the Executive actually receives written notice from the
Post-Transaction Corporation requesting the


    
      
         


      

      
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    resignation,
the Executive shall forfeit any right to receive any payments pursuant to this
Agreement.

    


    (e)           Nondisclosure,
Noncompetition and Proprietary Rights.  The rights and
obligations of the Company and the Executive contained in Article V
(“Nondisclosure, Noncompetition and Proprietary Rights”) of the Employment
Agreement shall continue to apply after a Change of Control.

    


    2.6           Excise Tax
Provision.

     

    (a)           Notwithstanding
any other provisions of this Agreement, if a Change of Control occurs during the
original or extended term of this Agreement, in the event that any payment or
benefit received or to be received by the Executive in connection with the
Change of Control of the Company or the termination of the Executive’s
employment under this Agreement or any other agreement between the Company and
the Executive (all such payments and benefits, including the payments and
benefits under Section 2.5 hereof, being hereinafter called “Total Payments”)
would be subject (in whole or in part), to an excise tax imposed by section 4999
of the Code (the “Excise Tax”), then the cash payments under Section 2.5 hereof
shall first be reduced, and the non-cash payments and benefits under the other
sections hereof shall thereafter be reduced, to the extent necessary so that no
portion of the Total Payments is subject to the Excise Tax but only if (A) the
net amount of such Total Payments, as so reduced (and after subtracting the net
amount of federal, state and local income and employment taxes on such reduced
Total Payments) is greater than or equal to (B) the net amount of such Total
Payments without such reduction (but after subtracting the net amount of
federal, state and local income and employment taxes on such Total Payments and
the amount of Excise Tax to which the Employee would be subject in respect of
such unreduced Total Payments); provided, however, that the Executive may elect
to have the non-cash payments and benefits hereof reduced (or eliminated) prior
to any reduction of the cash payments under Section 2.5 hereof.

     

     

    (b)           For
purposes of determining whether and the extent to which the Total Payments will
be subject to the Excise Tax, (i) no portion of the Total Payments the receipt
or enjoyment of which the Executive shall have waived at such time and in such
manner as not to constitute a “payment” within the meaning of section 280G(b) of
the Code shall be taken into account, (ii) no portion of the Total Payments
shall be taken into account which, in the opinion of tax counsel (“Tax Counsel”)
reasonably acceptable to the Executive and selected by the accounting firm (the
“Auditor”) which was, immediately prior to a Change of Control or other event
giving rise to a potential Excise Tax, the Company’s independent auditor, does
not constitute a “parachute payment” within the meaning of section 280G(b)(2) of
the Code (including by reason of section 280G(b)(4)(A) of the Code) and, in
calculating the Excise Tax, no portion of such Total Payments shall be taken
into account which, in the opinion of Tax Counsel, constitutes reasonable
compensation for services actually rendered, within the meaning of section
280G(b)(4)(B) of the Code, in excess of the “Base Amount” (within the meaning
set forth in section 280G(b)(3) of the Code) allocable to such reasonable
compensation, and (iii) the value of any non-cash benefit or any deferred
payment or benefit included in the Total Payments shall be determined by the
Auditor in accordance with the principles of sections 280G(d)(3) and (4) of the
Code.

     

    
      
         


      

      
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    (c)           At
the time that payments are made under this Agreement, the Post-Transaction
Corporation shall provide the Executive with a written statement setting forth
the manner in which such payments were calculated and the basis for such
calculations including, without limitation, any opinions or other advice the
Post-Transaction Corporation has received from Tax Counsel, the Auditor or other
advisors or consultants (and any such opinions or advice which are in writing
shall be attached to the statement).

     

    


    2.7           Stock Options; Performance Units;
Restricted Stock Units.  The foregoing benefits are intended to
be in addition to the value of any options to acquire Common Stock of the
Company, the exercisability of which is accelerated pursuant to the terms of any
stock option agreement, any restricted stock units the vesting of which is
accelerated pursuant to the terms of the restricted stock unit agreement, the
performance units under the long-term performance incentive plans, and any other
incentive or similar plan heretofore or hereafter adopted by the
Company.

    


    2.8           Legal Fees.  Except
as otherwise provided herein, the Company agrees to pay all legal fees and
expenses that the Executive may reasonably incur as a result of any contest by
the Company, the Executive or others with respect to the validity or
enforceability of, or liability under, any provision of this Agreement
(including as a result of any contest by the Executive about the amount or
timing of any payment pursuant to this Agreement), provided that the Executive
prevails on any material claim.

    


    2.9           Section 409A of the Internal Revenue
Code.

     

    (a)           It
is the intention of the parties that payments or benefits payable under this
Agreement not be subject to the additional tax imposed pursuant to Section 409A
of the Code, and the regulations and guidance issued thereunder (together,
“Section 409A”), and the provisions of this Agreement shall be construed and
administered in accordance with such intent.  To the extent any
potential payments or benefits could become subject to Section 409A, the parties
shall cooperate to amend this Agreement with the goal of giving the Executive
the economic benefits described herein in a manner that does not result in such
tax being imposed.  If the parties are unable to agree on a mutually
acceptable amendment, the Company may, without the Executive’s consent and in
such manner as it deems appropriate, amend or modify this Agreement or delay the
payment of any amounts hereunder to the minimum extent necessary to meet the
requirements of Section 409A.

     

    (b)           No
payments or benefits provided herein that are paid because of a termination of
employment under circumstances described herein shall be paid, unless such
termination of employment also constitutes a “separation from service” within
the meaning of Section 409A.

     

    (c)           If
Executive is a “specified employee,” any payments payable as a result of
Executive’s termination of employment (other than as a result of death) shall
not be payable before the earlier of (i) the first business day that is more
than six months after Executive’s Termination Date, (ii) the date of Executive’s
death, or (iii) the date that otherwise complies with the requirements of
Section 409A.  “Specified employee” shall mean the Executive if the
Executive is a key employee under Treasury Regulations Section 1.409A-1(i)
because of final

     

    
      
         


      

      
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    and
binding action taken by the Board or its Corporate Personnel Committee, or by
operation of law or such regulation.

     

    (d)           No
acceleration of payments and benefits provided for in this Agreement shall be
permitted, except that the Company may accelerate payment, if permitted by
Section 409A, as necessary to allow the Executive to pay FICA taxes on amounts
payable hereunder and additional taxes resulting from the payment of such FICA
amount, or as necessary to pay taxes and penalties arising as a result of the
payments provided for in this Agreement failing to meet the requirements of
Section 409A.  In no event shall the Executive, directly or
indirectly, designate the calendar year of payment.

     

    (e)           To
the extent that the amounts payable under this Article II are reimbursements and
other separation payments described under Treasury Regulations Section
1.409A-1(b)(9)(v), such payments do not provide for the deferral of
compensation.  If they do constitute deferral of compensation governed
by Section 409A, they shall be deemed to be reimbursements or in-kind benefits
governed by Treasury Regulations Section 1.409A-3(i)(1)(iv).  If the
previous sentence applies, (i) the amount of expenses eligible for reimbursement
or in-kind benefits provided during the Executive’s taxable year shall not
affect the expenses eligible for reimbursement or in-kind benefits in any other
taxable year, (ii) the reimbursement of an eligible expense must be made on or
before the last day of the Executive’s taxable year following the taxable year
in which the expense was incurred and (iii) the right to reimbursement or
in-kind benefits shall not be subject to liquidation or exchange for another
benefit.

     

    Article
III

    Miscellaneous

    


    3.1           Binding Effect;
Successors.

    


    (a) This
Agreement shall be binding upon and inure to the benefit of the Company and any
of its successors or assigns.

    


    (b) This
Agreement is personal to the Executive and shall not be assignable by the
Executive without the consent of the Company (there being no obligation to give
such consent) other than such rights or benefits as are transferred by will or
the laws of descent and distribution.

    


    (c)           The
Company shall require any successor to or assignee of (whether direct or
indirect, by purchase, merger, consolidation or otherwise) all or substantially
all of the assets or businesses of the Company (i) to assume unconditionally and
expressly this Agreement and (ii) to agree to perform or to cause to be
performed all of the obligations under this Agreement in the same manner and to
the same extent as would have been required of the Company had no assignment or
succession occurred, such assumption to be set forth in a writing reasonably
satisfactory to the Executive.

    


    (d)           The
Company shall also require all entities that control or that after the
transaction will control (directly or indirectly) the Company or any such
successor or assignee to


    
      
         


      

      
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    agree to
cause to be performed all of the obligations under this Agreement, such
agreement to be set forth in a writing reasonably satisfactory to the
Executive.

    


    3.2           Notices.  All
notices hereunder must be in writing and, unless otherwise specifically provided
herein, will be deemed to have been given upon receipt of delivery by: (a) hand
(against a receipt therefor), (b) certified or registered mail, postage prepaid,
return receipt requested, (c) a nationally recognized overnight courier service
(against a receipt therefor) or (d) telecopy transmission with confirmation of
receipt.  All such notices must be addressed as follows:

    


    If to the
Company, to:

    


    Freeport-McMoRan
Copper & Gold Inc.

    One North
Central Avenue

    Phoenix,
Arizona 85004

    Attention:  Chairman
of Corporate Personnel Committee

    


    If to the
Executive, to:

    


    James R.
Moffett

    One North
Central Avenue

    Phoenix,
Arizona 85004

    


    or such
other address as to which any party hereto may have notified the other in
writing.

    


    3.3           Governing Law.  This
Agreement shall be construed and enforced in accordance with and governed by the
internal laws of the State of Delaware without regard to principles of conflict
of laws, except as expressly provided in Article V Section 6 of the Employment
Agreement with respect to the resolution of disputes arising under, or the
Company’s enforcement of, such Article V.

    


    3.4           Withholding.  The
Executive agrees that the Company has the right to withhold, from the amounts
payable pursuant to this Agreement, all amounts required to be withheld under
applicable income and/or employment tax laws, or as otherwise stated in
documents granting rights that are affected by this Agreement.

    


    3.5           Amendment,
Waiver.  No provision of this Agreement may be modified,
amended or waived except by an instrument in writing signed by both
parties.

    


    3.6           Severability.  If
any term or provision of this Agree­ment, or the application thereof to any
person or circumstance, shall at any time or to any extent be invalid, illegal
or unenforceable in any respect as written, Executive and the Company intend for
any court construing this Agreement to modify or limit such provision so as to
render it valid and enforceable to the fullest extent allowed by
law.  Any such provision that is not susceptible of such reformation
shall be ignored so as to not affect any other term or provision hereof, and the
remainder of this Agreement, or the application of such term or provision to
persons or


    
      
         


      

      
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    circumstances
other than those as to which it is held invalid, illegal or unenforceable, shall
not be affected thereby and each term and provision of this Agreement shall be
valid and enforced to the fullest extent permitted by law.

    


    3.7           Waiver of
Breach.  The waiver by either party of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach thereof.

    


    3.8           Remedies Not
Exclusive.  No remedy specified herein shall be deemed to be
such party’s exclusive remedy, and accordingly, in addition to all of the rights
and remedies provided for in this Agreement, the parties shall have all other
rights and remedies provided to them by applicable law, rule or
regulation.

    


    3.9           Company’s Reservation of
Rights.  Executive acknowledges and understands that the
Executive serves at the pleasure of the Board and that the Company has the right
at any time to terminate Executive’s status as an employee of the Company, or to
change or diminish his status during the Employment Term, subject to the rights
of the Executive to claim the benefits conferred by this Agreement.

    


    3.10           Prior Change of Control
Agreement.  Effective as of the Change of Control Agreement
Date, this Agreement supersedes any prior change of control agreement between
the Executive and the Company.

    


    3.11           Counterparts.  This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the
same instrument.

    


    


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    IN
WITNESS WHEREOF, the Company and the Executive have caused this Agreement to be
executed as of December 31, 2008.

    


    


    Freeport-McMoRan
Copper & Gold Inc.

    


    


    


    By:           /s/ H Devon Graham,
Jr.

    H. Devon
Graham, Jr.

    Director
and Chairman of the

    Corporate
Personnel Committee of the

    Board of
Directors

    


    


    Executive

    


    


    


    /s/ James R.
Moffett                                                                           

    James R.
Moffett

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    Signature
Page of Change of Control Agreement

    between
Freeport-McMoRan Copper & Gold Inc.

    and
James R. Moffett


    
      
         


      

      
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