exhibit10_40.htm


    
      

    


    Exhibit
10.40

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    McMoRan
EXPLORATION CO.

    


    


    2005
SUPPLEMENTAL EXECUTIVE CAPITAL

    ACCUMULATION
PLAN

    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    


    (As
Amended and Restated Effective January 1, 2009)

    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    

    TABLE OF CONTENTS

     

     

    Page

    
      
        

          
            	
                    ARTICLE
      I – DEFINITIONS

                  	
                    2

                  
	
                    1.00

                  	 
      	
                    Account
      or Accounts

                  	
                    2

                  
	
                    1.01

                  	 
      	
                    Compensation

                  	
                    2

                  
	
                    1.02

                  	 
      	
                    Beneficiary

                  	
                    2

                  
	
                    1.03

                  	 
      	
                    Board
      of Directors

                  	
                    2

                  
	
                    1.04

                  	 
      	
                    Committee

                  	
                    2

                  
	
                    1.05

                  	 
      	
                    Company

                  	
                    2

                  
	
                    1.06

                  	 
      	
                    Contribution

                  	
                    2

                  
	
                    1.07

                  	 
      	
                    Core
      Company

                  	
                    3

                  
	
                    1.08

                  	 
      	
                    Employee

                  	
                    3

                  
	
                    1.09

                  	 
      	
                    Employer

                  	
                    3

                  
	
                    1.10

                  	 
      	
                    MMR-ECAP

                  	
                    3

                  
	
                    1.11

                  	 
      	
                    Internal
      Revenue Code or Code

                  	
                    3

                  
	
                    1.12

                  	 
      	
                    Participant

                  	
                    3

                  
	
                    1.13

                  	 
      	
                    Participating
      Company

                  	
                    3

                  
	
                    1.14

                  	 
      	
                    Plan

                  	
                    3

                  
	
                    1.15

                  	 
      	
                    Plan
      Year

                  	
                    3

                  
	
                    1.16

                  	 
      	
                    Separation
      from Service

                  	
                    3

                  
	
                    1.17

                  	 
      	
                    Specified
      Employee

                  	
                    4

                  
	
                    1.18

                  	 
      	
                    Value
      Determination Date

                  	
                    4

                  
	 
      	 
      	 
      	 
      
	
                    ARTICLE
      II -- ELIGIBILITY

                  	
                    4

                  
	
                    2.00

                  	 
      	
                    Eligible
      Employee for Basic and Matching Contribution

                  	
                    4

                  
	
                    2.01

                  	 
      	
                    Automatic
      Eligibility for Enhanced Company Contribution Credit

                  	
                    4

                  
	
                    2.02

                  	 
      	
                    Automatic
      Eligibility for Excess Section 415 Amounts

                  	
                    4

                  
	
                    2.03

                  	 
      	
                    Automatic
      Eligibility for Excess Section 401(a)(4) Amounts

                  	
                    5

                  
	 
      	 
      	 
      	 
      
	
                    ARTICLE
      III -- MMR-SECAP BASIC CREDITS

                  	
                    5

                  
	
                    3.00

                  	 
      	
                    Deferral
      Election

                  	
                    5

                  
	
                    3.01

                  	 
      	
                    Earnings

                  	
                    6

                  
	 
      	 
      	 
      	 
      
	
                    ARTICLE
      IV -- OTHER MMR-SECAP CREDITS

                  	
                    6

                  
	
                    4.00

                  	 
      	
                    MMR-SECAP
      Company Matching Contribution Credit

                  	
                    6

                  
	
                    4.01

                  	 
      	
                    MMR-SECAP
      Enhanced Company Contribution Credits

                  	
                    6

                  
	 
      	 
      	 
      	 
      
	
                    ARTICLE
      V -- VALUATION OF A PARTICIPANT’S INTEREST IN A FUND

                  	
                    7

                  
	
                    5.00

                  	 
      	
                    Annual
      Statements

                  	
                    7

                  
	
                    5.01

                  	 
      	
                    Valuation

                  	
                    7

                  
	 
      	 
      	 
      	 
      
	
                    ARTICLE
      VI -- PAYMENTS

                  	
                    7

                  
	
                    6.00

                  	 
      	
                    Distribution
      Upon Separation from Service

                  	
                    7

                  
	
                    6.01

                  	 
      	
                    Timing
      of Payment

                  	
                    7

                  
	
                    6.02

                  	 
      	
                    Distribution
      Upon Death

                  	
                    8

                  
	
                    6.03

                  	 
      	
                    Form
      of Payments

                  	
                    8

                  
	
                    6.04

                  	 
      	
                    Loans
      Prohibited

                  	
                    8

                  


          


          
            
               


            

            
              i

              
                

              

            

            
               


            

          


          
            	
                    6.05

                  	 
      	
                    Transition
      Period Elections

                  	
                    8

                  
	 
      	 
      	 
      	 
      
	
                    ARTICLE
      VII -- VESTING AND FORFEITURES

                  	
                    9

                  
	
                    7.00

                  	 
      	
                    Vesting
      and Forfeitures

                  	
                    9

                  
	
                    7.01

                  	 
      	
                    Restoration
      of Forfeitures

                  	
                    9

                  
	 
      	 
      	 
      	 
      
	
                    ARTICLE
      VIII -- ADMINISTRATION

                  	
                    9

                  
	
                    8.00

                  	 
      	
                    Committee

                  	
                    9

                  
	
                    8.01

                  	 
      	
                    Notices,
      Statements, Etc.

                  	
                    10

                  
	
                    8.02

                  	 
      	
                    Indemnification

                  	
                    10

                  
	
                    8.03

                  	 
      	
                    Bookkeeping
      Accounts

                  	
                    10

                  
	
                    8.04

                  	 
      	
                    Determination
      of Eligibility

                  	
                    10

                  
	 
      	 
      	 
      	 
      
	
                    ARTICLE
      IX -- CLAIMS PROCEDURES

                  	
                    10

                  
	
                    9.00

                  	 
      	
                    Claims
      Procedures

                  	
                    10

                  
	 
      	 
      	 
      	 
      
	
                    ARTICLE
      X -- GENERAL PROVISIONS

                  	
                    11

                  
	
                    10.00

                  	 
      	
                    Beneficiary
      Designation; Change

                  	
                    12

                  
	
                    10.01

                  	 
      	
                    Status
      of the Plan

                  	
                    12

                  
	
                    10.02

                  	 
      	
                    Not
      a Contract of Employment

                  	
                    12

                  
	
                    10.03

                  	 
      	
                    Unsecured
      General Creditor

                  	
                    12

                  
	
                    10.04

                  	 
      	
                    Amendment
      and Termination

                  	
                    12

                  
	
                    10.05

                  	 
      	
                    Non-Assignability

                  	
                    13

                  
	
                    10.06

                  	 
      	
                    Offset

                  	
                    13

                  
	
                    10.07

                  	 
      	
                    Governing
      Law

                  	
                    13

                  


          


          
            
               


            

            
              ii

              
                

              

            

            
               


            

          




      

    

    McMoRan
EXPLORATION CO.

    2005
SUPPLEMENTAL EXECUTIVE CAPITAL ACCUMULATION PLAN

    (As
Amended and Restated Effective January 1, 2009)

    


    


    Recitals

     

    WHEREAS, McMoRan Exploration
Co. adopted the McMoRan Exploration Co. Supplemental Executive Capital
Accumulation Plan for the benefit of selected employees effective of January 1,
1996 and the Plan was renamed, effective January 1, 2008 as the McMoRan
Exploration Co. 1996 Supplemental Executive Accumulation Plan (“FCX
1996-SECAP”);

     

    WHEREAS, McMoRan Exploration
Co. (the “Company”), established and maintains the McMoRan Exploration Co. 2005
Supplemental Executive Capital Accumulation Plan, effective as of January 1,
2008 (the “MMR-SECAP or Plan”), in response to the enactment of Section 409A of
the Internal Revenue Code of 1986, as amended (the “Code”), to provide deferred
compensation benefits earned or vested after December 31, 2004, with all
earnings attributable thereto, for the benefit of the eligible employees of the
Company and any Participating Employer; and

     

    WHEREAS, the Company desires
to amend and restate the MMR-SECAP to comply with the applicable requirements
under the final regulations issued under Code Section 409A, which regulations
are effective as of January 1, 2009, and to make other revisions and
clarifications;

     

    NOW, THEREFORE, effective as
of January 1, 2009, the Company hereby amends, restates and continues the
MMR-SECAP as herein set forth:

     


    
      
         


      

      
        1

        
          

        

      

      
         


      

    


    ARTICLE I --DEFINITIONS

     

    Unless
otherwise required by the context, wherever used herein:

     

    1.00 Account or
Accounts means
the Basic Credits Account, Company Savings Contribution Credits Account and
Enhanced Company Contribution Credits Account reflecting amounts earned or
vested after December 31, 2004, with all earnings attributable
thereto.

     

    1.01 Compensation


     

    
      	
              (a)  

            	
              Basic
      Compensation means Participant’s Basic Compensation, as defined in
      the MMR-ECAP.

            


    

     

    
      	
              (b)  

            	
              Pensionable
      Compensation means the Participant’s Pensionable Compensation as
      defined in the MMR-ECAP.

            


    

     

    1.02 Beneficiary means
the person or entity designated by the Participant on forms furnished by the
Committee to receive benefits under this Plan upon the Participant’s
death.

     

    1.03 Board of
Directors means
the Board of Directors of the Company.

     

    1.04 Committee means
a Committee appointed by the Board of Directors consisting of one to three
members of the Board or officers of the Company.

     

    1.05 Company means
McMoRan Exploration Co. (“MMR”) or any Company that is a successor as a result
of a merger, consolidation, liquidation, transfer of assets, or
reorganization.

     

    1.06 Contribution means
the following amounts credited for bookkeeping purposes to the Participant’s
Account or Accounts:

     

    
      	
              (a)  

            	
              Basic
      Credits means amounts credited to a Participant's Account pursuant
      to Section 3.00 of this Plan.

            


    

     

    
      	
              (b)  

            	
              Company
      Savings Contribution Credits means matching contributions made by a
      Participating Company on behalf of a Participant for Basic Credits
      deferred prior to 2009.

            


    

     

    
      	
              (c)  

            	
              Enhanced
      Company Contribution Credits means amounts that would be
      contributed to the MMR-ECAP as Enhanced Company Contribution but for the
      limits imposed by the Internal Revenue
Code.

            


    

     

    
      	
              (d)  

            	
              DC
      Adjustment Contribution Credits means amounts that were contributed
      to the MMR-SECAP as DC Adjustment Contribution for a period of sixty (60)
      months starting in July, 2000.  The DC Adjustment Contribution
      Credits are accounted for in the Participant’s Enhanced Company
      Contribution Credits Account.

            


    

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    1.07 Core
Company means
McMoRan Oil & Gas Co. and its affiliates, Freeport-McMoRan Copper & Gold
Inc. and its affiliates and FM Services Company and its affiliates.

     

    1.08 Employee means
an Employee as defined in the MMR-ECAP.

     

    1.09 Employer means the Company and all
entities with whom the Company would be considered a single employer under
Section 414(b) of the Code (employees of a controlled group of corporations),
and all entities with whom the Company would be considered a single employer
under Section 414(c) of the Code (employees of partnerships, proprietorships,
etc., under common control).

     

    1.10 MMR-ECAP means
the McMoRan Exploration Co. Employee Capital Accumulation Program maintained by
the Company, as may be amended from time to time.

     

    1.11 Internal Revenue Code or
Code means
the Internal Revenue Code of 1986, as amended from time to time.

     

    1.12 Participant means
an Employee or former Employee for whom an Account in the Plan is
maintained.

     

    1.13 Participating
Company means
the Company and any corporation that has been designated by the Board of
Directors or its delegates as a Participating Company for the employees of which
the benefits of this Plan are available.

     

    1.14 Plan means
this McMoRan Exploration Co. 2005 Supplemental Executive Capital Accumulation
Plan, as amended and restated effective January 1, 2009, (“MMR-SECAP” or
“Plan”).

     

    1.15 Plan Year means
the twelve (12) month period beginning on January 1st and ending each December
31 during which the Plan is in effect.

     

    1.16 Separation from
Service means
a termination of employment with the Employer in such a manner as to constitute
a “separation from service” as defined under Treasury Regulations Section
1.409A-1(h), for any reason other than death.

     

    Whether a
termination of employment has occurred is determined based upon whether the
facts and circumstances indicate that the Employer and Employee reasonably
anticipated that no further services would be performed after a certain date or
that the level of bona fide services the Employee would perform after such date
(whether as an employee or independent contractor) would permanently decrease to
no more than 20 percent of the average level of bona fide services performed
(whether as an employee or independent contractor) over the immediately
preceding 36-month period (or, if employed less than 36 months, such lesser
period).

     

    An unpaid
bona fide leave of absence is disregarded in determining the average level of
bona fide services during the 36 month period (or, if employed less than 36
months, such lesser period) and a paid bona fide leave is considered at a level
equal to the level of services that the employee would have been required to
perform to receive the compensation paid with respect to such
leave.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    Facts and
circumstances to be considered in making a determination of Separation from
Service include, but are not limited to, whether the Employee continues to be
treated as an employee for other purposes (such as continuation of salary and
participation in employee benefit programs), whether similarly situated
Employees have been treated consistently, and whether the Employee is permitted
and realistically available to perform services for other service recipients in
the same line of business.

     

    An
Employee is presumed to have separated from service where the level of bona fide
services decrease as described above.  An Employee will be presumed
not to have separated from service where the level of bona fide services
performed continues at a level that is 50 percent or more over the immediately
preceding 36-month period.  No presumption applies to a decrease that
is more than 20% and less than 50%.  This presumption is rebuttable if
an Employee must return to employment due to business circumstances, such as the
termination of the employee’s replacement.

     

    A
Separation from Service has not occurred while the Employee is on military
leave, sick leave, or other bona fide leave of absence if the period does not
exceed six months, or if longer, so long as the Employee retains the right to
reemployment with the Employer under an applicable statute or by
contract.  A leave of absence constitutes a bona fide leave of absence
only if there is a reasonable expectation that the Employee will return to
perform services for the Employer.  A 29-month period may be
substituted for the six-month period for certain medical leaves of
absence.

     

    Treasury
Regulation Section 1.409A-1(h)(1) definitions of “separation from service”,
leave of absence, and termination of employment are incorporated
herein.

     

    1.17 Specified
Employee shall
mean a Participant who is a key employee of the Employer under Treasury
Regulations Section 1.409A-1(i) because of final and binding action taken by the
Board of Directors of the Company or delegate, or by operation of law or such
regulation.

     

    1.18 Value Determination
Date means
any business date specified by the Company but no less frequently than on a
monthly basis.

     

    ARTICLE II --ELIGIBILITY

     

    2.00 Eligible
Employee for
Basic and Matching Contribution. An
Employee is eligible to make Basic Contribution Credits and receive Matching
Contribution Credits if he or she (a) had annualized Basic Compensation equal to
or greater than the Code Section 401(a)(17) dollar limit in a prior year or (b)
was previously a participant in a  Core Company’s nonqualified
deferred compensation plan which is comparable to this Plan as determined by the
Committee.

     

    2.01 Automatic Eligibility for
Enhanced Company Contribution Credit.  An
Employee will automatically become eligible for Enhanced Company Contribution
Credits when his or her Pensionable Compensation exceeds the Code Section
401(a)(17) dollar amount.

     

    2.02 Automatic Eligibility for
Excess Section 415 Amounts.  Any
Employee who would receive contributions under the MMR-ECAP but for the limits
imposed by Code Section 

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    415 shall
automatically become a Participant eligible for the Enhanced Company
Contribution Credits.

     

    2.03 Automatic Eligibility for
Excess Section 401(a)(4) Amounts.  Any
Employee who would receive Enhanced Company Contributions under the MMR-ECAP but
for concerns by the Participating Company, as described in Section 4.01(c)
herein, that such contributions will cause the MMR-ECAP to be discriminatory
under Code Section 401(a)(4), shall automatically become a Participant eligible
for the Enhanced Company Contribution Credit.

     

    ARTICLE
III --MMR-SECAP
BASIC CREDITS

     

    3.00 Deferral Election.

     

    
    

     

    
      	
              (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 MMR-ECAP have ceased
      due to application of Code Sections 401(a)(17) and 402(g) and, if elected
      by the Participant, Code Section 414(v). The Code Section 401(a)(17)
      amount for Plan Year 2009 is $245,000, the Code Section 402(g) amount for
      Plan Year 2009 is $16,500 and the Code Section 414(v) amount for Plan Year
      2009 is $5,500.  The amount of allowable deferral pursuant to
      the Participant’s election shall be a minimum of one (1) percent, 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
      MMR-ECAP.

            


    

     

    
      	
              (b)  

            	
              Irrevocable
      Election.  Once a Plan Year has begun, Participant
      elections shall be irrevocable. Notwithstanding, as permitted by Treasury
      Regulation Section 1.409A-3(j)(4)(viii), a Participant’s deferral election
      is cancelled as required by the MMR-ECAP to receive a hardship
      distribution pursuant to Treasury Regulation Section
      1.401(k)-1(d)(3).  If a Participant discontinues a deferral
      election, he will not be permitted to elect to make deferrals again until
      open enrollment for the succeeding Plan
Year.

            


    

     

    If a
Participant is authorized by the Participating Company for any reason to take an
unpaid leave of absence from the employment of the Participating Company, the
Participant shall be excused from making deferrals until the Participant returns
to a paid employment status. Upon such return, deferrals shall resume for the
remaining portion of the Plan Year in which the return occurs, based on the
deferral election, if any, made for that Plan Year.  If no election
was made for that Plan Year, no deferral shall be withheld.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    
      	
              (c)  

            	
              Duration
      of Deferral Election.  A Basic Credits Election Form
      shall be executed prior to the beginning of the Plan Year to which the
      agreement relates and shall be effective only for the Plan Year to which
      it relates.

            


    

     

    3.01 Earnings.  The
Participant's Basic Credits 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.

     

    ARTICLE
IV --OTHER
MMR-SECAP CREDITS

     

    4.00 MMR-SECAP Company Matching
Contribution Credit.

     

    
      	
              (a)  

            	
              For
      each dollar of Basic Credits that the Eligible Employee contributes to the
      Plan pursuant to his or her Basic Credits Deferral Election, the
      Participating Company shall deem set aside an amount (“Company Savings
      Contribution Credits”) equal to the amount of Participating Company
      Savings Contributions that would have been made under the MMR-ECAP if the
      Participant’s Basic Credits had been made to the MMR-ECAP instead of being
      credited to this Plan.

            


    

     

    
      	
              (b)  

            	
              The
      Participant's Company Savings Contribution Credits 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.

            


    

     

    
      	
              (c)  

            	
              If
      an Eligible Employee is hired from a Core Company, he or she will receive
      the same Company Savings Contribution Credits under Section 4.00(a) of
      this Plan that he or she would have received under the equivalent
      provision in the Core Company’s equivalent
plan.

            


    

     

    4.01 MMR-SECAP Enhanced Company
Contribution Credits.

     

    
      	
              (a)  

            	
              The
      Enhanced Company Contribution Credits shall be equal to the percentage
      determined under the MMR-ECAP times [(A) minus (B)] when (A) equals such
      Participant’s Pensionable Compensation and (B) equals the Code Section
      401(a)(17) dollar limit for the applicable
year.

            


    

     

    
      	
              (b)  

            	
              When
      the Participating Company determines that amounts scheduled for
      contribution to the MMR-ECAP as Enhanced Company Contributions for a
      Participant will exceed the limit imposed by Code Section 415, the
      Participating Company shall credit the Participant's Enhanced Company
      Contribution Credits Account with such excess contributions. Further, if
      any contributions in excess of Code Section 415 are inadvertently
      contributed on behalf of a Participant to the MMR-ECAP, and such
      Participant’s MMR-ECAP accounts are reduced pursuant to the terms of such
      plan to correct the excess contributions, the amount of such reduction
      (including any earnings accrued in the MMR-ECAP) shall be credited to
      

            


    

     

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

    
       

      the
Participant’s applicable Accounts in this Plan as soon as administratively
feasible.

    

     

    
      	
              (c)  

            	
              If
      the Committee determines, upon the advice of the Participating Company’s
      counsel or actuary, that amounts that would be contributed to the MMR-ECAP
      as Enhanced Company Contributions for a Participant will cause the
      MMR-ECAP to be discriminatory under Code Section 401(a)(4), the
      Participating Company shall credit the Participant’s Enhanced Company
      Contribution Credits Account with some or all of the Participant’s future
      MMR-ECAP Enhanced Company
Contributions.

            


    

     

    
      	
              (d)  

            	
              If
      an Eligible Employee is hired from a Core Company, he or she will receive
      the same Enhanced Company Contribution Credits that he or she would have
      received under the equivalent provision in the Core Company’s equivalent
      plan.

            


    

     

    
      	
              (e)  

            	
              The
      Participant’s Enhanced Company Contribution Credits 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.

            


    

     

    ARTICLE
V --VALUATION
OF A PARTICIPANT’S INTEREST IN A FUND

     

    5.00 Annual
Statements.  As
soon as practicable after the close of each Plan Year (and at such intervals
during the Plan Year as may be determined by the Participating Company from time
to time), the Participating Company shall deliver to each Participant a
statement setting forth the amount credited for bookkeeping purposes to the
Participant’s Accounts.

     

    5.01 Valuation.  The
value of a Participant’s Accounts shall be based upon the unit value credited to
the Accounts as of a Value Determination Date.

     

    ARTICLE VI --PAYMENTS

     

    6.00 Distribution Upon
Separation from
Service.  Upon
Separation from Service, a Participant shall be paid as soon as practicable the
total vested value of the Participant’s Accounts provided, however, that if the
Participant has elected by timely filing the required notice with the Company 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 separation
occurs.  Notwithstanding, if the 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.

    


    6.01 Timing of
Payment.

     

    
      	
              (a)  

            	
              An
      Eligible Employee will be provided an opportunity to elect his or her
      distribution payment date when he makes an election to defer a percentage
      of his Basic Compensation as described in Section 3.00(a).  Once
      made, the distribution payment election, or default payment election,
      shall 

            


    

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    continue in force indefinitely for all of the Participant’s
Accounts, until changed by the Participant on a subsequent election form
provided by the Company.  Such subsequent distribution election shall
apply only to contributions made with respect to services to be performed in the
following Plan Year and future years and until changed again as described in
this paragraph.

     

    
      	
              (b)  

            	
              An
      Eligible Employee who is automatically eligible to receive Enhanced
      Company Contribution Credits prior to his or her
      eligibility to defer a percentage of his or her Basic Compensation will be
      deemed to have elected to receive payment upon Separation from
      Service.  This default payment election will continue in force
      indefinitely for all of the Participant’s Accounts, until changed by such
      Participant on an election form provided by the Company. Such subsequent
      distribution election shall apply only to contributions made with respect
      to services to be performed in the following Plan Year and future years
      and until changed again as described in this
  paragraph.

            


    

     

    
      	
              (c)  

            	
              Notwithstanding
      the provisions of Section 6.00(a), a Participant who has terminated
      employment with the Employer but has continued active employment with a
      Core Company, shall not be entitled to distribution of his or her Accounts
      until he or she is no longer employed by a Core
  Company.

            


    

     

    6.02 Distribution Upon
Death.  Upon
the death of a Participant, the value of the Participant’s Account or Accounts
shall be paid in lump sum to the Beneficiary or Beneficiaries, if any,
designated by the Participant, or if the Participant is not survived by any such
designated Beneficiary, then to the Participant’s estate.  Payment
shall be made on or before December 31 of the calendar year in which the death
occurs, or if later by the 15th day of
the third month following the date of death.  A Beneficiary may not
direct when payment is made. 

     

    6.03 Form of
Payments.  Distribution
to a Participant or his or her Beneficiary will be paid in lump
sum.

     

    6.04 Loans
Prohibited.  No
Participant shall be entitled to borrow any portion of the amount credited to
the Participant’s Accounts in this Plan.

     

    6.05 Transition Period
Elections.

     

    
      	
              (a)  

            	
              One-Time
      Lump Sum Option.  A certain Participant whose employment
      classification changed from common-law employee to independent contractor
      was offered a one-time option during the period ending December 31, 2008
      to elect to receive a lump sum payment on July 1, 2009, representing the
      Participant’s entire interest in the
Plan.

            


    

     

    
      	
              (b)  

            	
              409A
      Transition Election.  A Participant may make a new
      payment election at any time before December 31 2008, with respect to the
      time of payment of all elective deferrals and employer contributions
      earned or 

            


    

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    vested after December 31, 2004, with all earnings attributable
thereto, provided the election does not apply to amounts that would have
otherwise been payable in the year the change is made or cause an amount to be
paid in the year the change is made that would not otherwise be payable in that
year.  Such election will apply indefinitely for all of the
Participant’s Accounts until changed in accordance with the procedures described
in Section 6.01(a).  The new payment election during the transition
period must be received no later than six (6) months prior to a new payment
commencement date.

     

    ARTICLE
VII --VESTING
AND FORFEITURES

     

    7.00 Vesting and
Forfeitures.

     

    
      	
              (a)  

            	
              Vesting.  A
      Participant’s interest in his Basic Credits Account shall be 100% vested
      at all times.  A Participant’s interest in his or her Company
      Savings Contribution Credits Account shall vest at the same rate as his
      Company Savings Contribution Account in the MMR-ECAP.  A
      Participant’s interest in his or her Company Matching Contribution Credits
      Account shall vest at the same rate as his or her Company Matching
      Contribution Account in the MMR-ECAP.  A Participant’s interest
      in his Enhanced Company Contribution Credits Account will vest at the same
      rate as his or her Enhanced Company Contribution Account in the
      MMR-ECAP.

            


    

     

    
      	
              (b)  

            	
              Forfeitures.  A
      Participant’s non-vested amounts, if any, will forfeit when he or she
      receives a distribution of vested amounts.  If the Participant
      does not have any vested amount, his or her Accounts will forfeit at the
      end of the year in which the Participant terminated
      employment.

            


    

     

    7.01 Restoration of
Forfeitures.  Forfeitures
may be restored if a Participant elects to repay to the MMR-ECAP the full amount
of a distribution he or she previously received (unadjusted by any subsequent
gains or losses) from the MMR-ECAP in accordance with such plan’s reemployment
rules.  For example, if a Participant repays to the MMR-ECAP the full
amount of his or her Company Savings Contribution Account and his forfeited
Company Savings Contribution are restored in the MMR-ECAP then his or her
Company Savings Contribution Credits (unadjusted by any subsequent gains or
losses) under this Plan shall be credited to the Participant’s Company Savings
Contribution Credits Account.

     

    ARTICLE VIII --ADMINISTRATION

     

    8.00 Committee.  Effective
December 3, 2007, the Board appointed members to the Administration Committee
(the "Committee") that will function as the Plan Administrator of this
Plan.  The members of the Committee currently consist of Nancy D.
Parmelee, Dean T. Falgoust, Pamela Q. Masson, Douglas N. Currault II, and Chad
A. Ventola.  The operation, administration and determination and
answering of all questions arising under or in connection with the Plan shall be
the responsibility of the Committee.  The Committee shall have the
exclusive right to 

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    interpret
the Plan and to determine any questions arising under or in connection with the
administration of the Plan.  The Committee’s decision or action in
respect thereof shall be final and conclusive and binding upon all persons
having an interest in the Plan.

    


    8.01 Notices, Statements,
Etc.  The
Company and other Participating Companies may as a matter of accommodation
assist any Employee in the delivery of applications, notices, forms, statements,
records, remittances and other documents required or permitted to be served or
delivered under the Plan and in doing so will endeavor to exercise ordinary
diligence, but shall not be liable for any failure so to do or for any delay in
so doing, nor shall any director, officer, or employee of the Company and
Participating Companies be personally liable for any act or omission to act in
connection with the operation or administration of the Plan except for his or
her own willful misconduct or gross negligence.

     

    8.02 Indemnification.  The
Company will indemnify and hold harmless the Committee against any cost or
expense (including attorney’s fees) or liability (including any sum paid in
settlement of a claim with the approval of the Company) arising out of any act
or omission to act as Committee, except in the case of willful misconduct or
gross negligence.

     

    8.03 Bookkeeping
Accounts.  The
Company or its duly authorized record keeping agent, as determined by the
Company, shall establish and maintain Accounts for each Participant that will
separately reflect the amount credited to the Participant attributable to (i)
Basic Credits, (ii) Company Savings Contribution Credits, (iii) Company Matching
Contribution Credits, and (iv) Enhanced Company Contribution Credits and
interest shall be allocated separately with respect to each such Account in a
reasonable and consistent manner.

     

    8.04 Determination of
Eligibility.  If
the Company determines that an Employee is ineligible or becomes ineligible to
participate or to continue to participate in the Plan, the Company may terminate
Participant’s participation upon ten (10) days’ notice to the
Participant.

     

    ARTICLE
IX --CLAIMS
PROCEDURES

     

    9.00 Claims
Procedures.

     

    
      	
              (a)  

            	
              Any
      Participant or Beneficiary (a “Claimant”) who believes that he or she is
      entitled to a benefit under the Plan which he or she has not received may
      submit a claim to the Committee. Claims for benefits under this Plan shall
      be made in writing, signed by the Claimant or his or her authorized
      representative, and must specify the basis of the Claimant’s complaint and
      the facts upon which he or she relies in making such claim. A claim shall
      be deemed filed when received by the
Committee.

            


    

     

    
      	
              (b)  

            	
              In
      the event a claim for benefits is wholly or partially denied by the
      Committee, the Committee shall notify the Claimant in writing of the
      denial of the claim within a reasonable period of time, but not later than
      ninety (90) days after receipt of the claim, unless special circumstances
      require an extension of time for processing, in which case the ninety (90)
      day period may be extended to 180 days. The Committee shall notify
      

            


    

     

    
      
        
        

      

      
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    the Claimant in writing of any such extension. A notice of denial
shall be written in a manner reasonably calculated to be understood by the
Claimant, and shall contain (i) the specific reason or reasons for denial of the
claim; (ii) a specific reference to the pertinent Plan provisions upon which the
denial is based; (iii) a description of any additional material or information
necessary for the Claimant to perfect the claim, together with an explanation of
why such material or information is necessary; and (iv) an explanation of the
Plan’s review procedure.

     

    
      	
              (c)  

            	
              Within
      sixty (60) days of the receipt by the Claimant of the written notice of
      denial of the claim, the Claimant may appeal by filing with the Committee
      a written request for a full and fair review of the denial of the
      Claimant’s claim for benefits. Appeal requests under this Plan shall be
      made in writing, signed by the Claimant or his or her authorized
      representative, and must specify the basis of the Claimant’s complaint and
      the facts upon which he or she relies in making such appeal. An appeal
      request shall be deemed filed when received by the
    Committee.

            


    

     

    
      	
              (d)  

            	
              The
      Committee shall render a decision on the claim appeal promptly, but not
      later than sixty (60) days after the receipt of the Claimant’s request for
      review, unless special circumstances (such as the need to hold a hearing,
      if necessary), require an extension of time for processing, in which case
      the sixty (60) day period may be extended to one hundred twenty (120)
      days. The Committee shall notify the Claimant in writing of any such
      extension. The decision upon review shall be written in a manner
      reasonably calculated to be understood by the Claimant, and shall contain
      (i) the specific reason or reasons for denial of the claim; (ii) a
      specific reference to the pertinent Plan provisions upon which the denial
      is based; (iii) a statement that the Claimant shall be provided, upon
      request and free of charge, reasonable access to, and copies of, all
      documents, records, and other information relevant to the claim for
      benefits; and (iv) a statement of the Claimant’s right to bring an action
      under Section 502(a) of ERISA, if the adverse benefit determination is
      sustained on appeal.

            


    

     

    
      	
              (e)  

            	
              The
      Committee may provide written or electronic notification of any adverse
      benefit determination.  Any electronic notification shall comply
      with the standards imposed by 29 CFR 2520.104b-1(c)(1)(i), (iii) and
      (iv).

            


    

     

    
      	
              (f)  

            	
              No
      lawsuit by a Claimant may be filed prior to exhausting the Plan’s
      administrative appeal process. Any lawsuit must be filed no later than the
      earlier of one year after the Claimant’s claim for benefit was denied or
      the date the cause of action first
arose.

            


    

     

    ARTICLE
X --GENERAL
PROVISIONS

     

    10.00 Beneficiary Designation;
Change.  A
Participant may file with the Company a designation of a Beneficiary or
Beneficiaries to receive the value of his or her Account or 

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

    Accounts on the Participant’s death, and the Participant may from
time to time change or revoke any such designation.  The last such
designation received by the Company shall be controlling; provided, however,
that no designation or change or revocation thereof shall be effective unless
received by the Company prior to the Participant’s death, and in no event shall
it be effective as of a date prior to such receipt.  To the extent
permitted under Code Section 409A and Treasury Regulations and other
interpretive guidance issued thereunder, if the Committee is in doubt as to the
right of any Beneficiary to receive any amount, the Committee may retain such
amount, with liability for any interest thereon, until the rights thereto are
determined, or the Committee may pay such amount into any court of appropriate
jurisdiction, in either of which events neither the Committee nor any
Participating Company shall be under any further liability to anyone.

     

     

    10.01 Status of the
Plan.  This
Plan is not intended to constitute a qualified plan under Section 401(a) of the
Code, and is designed to be exempt from the participation, vesting, funding and
fiduciary responsibility rules of the ERISA.  The Plan “is unfunded
and is maintained by an employer primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated employee”
within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA.  The Plan shall be administered and interpreted to the extent
possible in a manner consistent with this intent.

     

    10.02 Not a Contract of
Employment.  Nothing
in the Plan shall be deemed or construed to impair or affect in any manner
whatsoever the rights of any Participating Company with respect to the
termination of employment of any person, whether or not a Participant, all of
which rights shall remain as if the Plan had not been established.

     

    10.03 Unsecured General
Creditor.  Notwithstanding
anything to the contrary in this Plan, the rights of a Participant or a
Participant’s Beneficiary to benefits under this Plan shall be solely those of
an unsecured creditor of the Company.  Any assets acquired or held by
the Company or funds allocated by the Company in connection with liabilities
assumed by the Company pursuant to this Plan shall not be deemed to be held
under any trust for the benefit of the Participant or Participant’s
Beneficiaries or security for the performance of the Company’s obligations
pursuant hereto, but shall be and remain general assets of the
Company.

     

    10.04 Amendment and
Termination.  It
is the expectation of the Company that the Plan will continue indefinitely, but
the Company reserves the right by written action of its Board of Directors, or
individual(s) specifically designated by the Board to act on its behalf, to
change or discontinue the Plan at any time.  Notwithstanding any other
provision of this Plan, it is the intention of the Company that no payment or
entitlement pursuant to this Plan will give rise to any adverse tax consequences
to any Participant or Beneficiary under Code Section 409A and Treasury
Regulations and other interpretive guidance issued thereunder, including that
issued after the date hereof (collectively, "Section 409A"). This Plan and any
amendments hereto shall be interpreted to that end and (1) to the maximum extent
permitted by law, no effect shall be given to any provision herein, any
amendment hereto or any action taken hereunder in a manner that reasonably could
be expected to give rise to adverse tax consequences under Section 409A and (2)
the Company shall take any corrective action reasonably within its control that
is necessary to avoid such adverse tax consequences.  No amendments
shall divest otherwise vested rights of Participants or their
Beneficiaries.

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    The Plan
may be terminated only under the following circumstances:

     

    
      	
              (a)  

            	
              The
      Employer may terminate the Plan within 12 months of a corporate
      dissolution taxed under Code Section 331 or with the approval of a
      bankruptcy court, provided that Treasury Regulations Section
      1.409A-3(j)(4)(ix)(A) is complied
with.

            


    

     

    
      	
              (b)  

            	
              Within
      the 30 days preceding or the 12 months following a Change in Control Event
      (as defined in Treasury Regulations §1.409A-3(i)(5)) provided that
      Treasury Regulations §1.409A-3(j)(4)(ix)(B) is complied
    with.

            


    

     

    
      	
              (c)  

            	
              The
      Company may in its discretion terminate this Plan, provided, (i) the
      termination and liquidation does not occur proximate to a downturn in the
      financial health of the Employer; (ii) all arrangements sponsored by the
      Employer that would be aggregated with any terminated arrangement under
      Section 1.409A-1(c) of the Treasury Regulations if the same Employee
      participated in all of the arrangements are terminated; (iii) no payments
      other than payments that would be payable under the terms of the
      arrangements if the termination had not occurred are made within 12 months
      of the termination of the arrangements; and (iv) all payments are made
      within 24 months of the termination of the arrangements; and (v) the
      Employer does not adopt a new arrangement that would be aggregated under
      Section 1.409A-1(c) of the Treasury Regulations if the same Employee
      participated in both arrangements, at any time within three years
      following the date of termination of the
  arrangement.

            


    

     

    10.05 Non-Assignability.  Neither
a Participant nor any other person shall have any right to commute, sell,
assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer,
hypothecate or convey in advance of actual receipt the amounts, if any, payable
under this Plan, or any part thereof, which are, and all rights to which are,
expressly declared to be non-assignable and non-transferable.  No part
of the amounts payable shall, prior to actual payment, be subject to seizure or
sequestration for the payment of any debts, contracts, liabilities, torts,
judgments, alimony, or separate maintenance owed by a Participant or any other
person, nor be transferable by operation of law in the event of a Participant’s
or any other person’s bankruptcy or insolvency.

     

    10.06 Offset.  If
at the time benefit payments are to be made under the Plan, the Participant, the
Participant’s Beneficiary or both are indebted to the Employer, then the
payments remaining to be made to the Participant, the Participant’s Beneficiary
or both, may, at the Committee’s discretion, be reduced by the amount of such
indebtedness.

     

    10.07 Governing
Law.  The
Plan will be construed, administered and enforced according to Code Section 409A
and related Internal Revenue Service guidelines, ERISA, and to the extent not
preempted thereby, the laws of the State of Louisiana.

     


    
      
         


      

      
        13

        
          

        

      

      
         


      

    


    Executed
in New Orleans, Louisiana this 29th day of December, 2008.

    


    


                                                                                                    
   McMoRan Exploration Co.

                                        /s/ Dean T. Falgoust

                                         Dean T.
Falgoust

                                           
Vice-President
WITNESSES:   

    /s/
signed

    


    /s/
signed 

     

     

     


    
      
         


      

      
        14

        
          

        

      

      
         


      

    


    ACKNOWLEDGMENT

     

    STATE
OF LOUISIANA

    


    PARISH
OF ORLEANS

    


    


    BEFORE
ME, the undersigned Notary Public, personally came and appeared DEAN T. FALGOUST
who, being by me sworn, did depose and state that he signed the foregoing
Amendment to the McMoRan Exploration Co. Supplemental Executive Capital
Accumulation Plan as a free act and deed on behalf of McMoRan Exploration Co.
for the purposes therein set forth.

    


                    /s/ Dean T. Falgoust

     
Dean T. Falgoust

    Vice-President

    


    


    SWORN
TO AND SUBSCRIBED

    BEFORE
ME THIS 29th DAY

    OF
DECEMBER, 2008.

    


    


    


    ________________________________

    NOTARY
PUBLIC

    My
Commission Expires:  _________

    



    
      
         


      

      
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