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
(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.
(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.
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
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
