Exhibit
10.23
FREEPORT-McMoRan COPPER
& GOLD INC.
1995 STOCK OPTION
PLAN
SECTION 1
Purpose . The purpose of the Freeport-McMoRan Copper
& Gold Inc. 1995 Stock Option Plan (the “Plan”) is
to motivate and reward key personnel by giving them a proprietary
interest in the Company’s continued success.
SECTION 2
Definitions . As used in the Plan, the following terms shall
have the meanings set forth below:
“Award” shall mean any Option, Stock
Appreciation Right, Limited Right or Other Stock-Based
Award.
“Award Agreement” shall mean any
written agreement, contract or other instrument or document
evidencing any Award, which may, but need not, be executed or
acknowledged by a Participant.
“Board” shall mean the Board of
Directors of the Company.
“Code” shall mean the Internal
Revenue Code of 1986, as amended from time to time.
“Committee” shall mean a committee
of the Board designated by the Board to administer the Plan and
composed of not fewer than two directors, each of which directors,
to the extent necessary to comply with Rule 16b-3 only, is a
“disinterested person” within the meaning of
Rule 16b-3. Until otherwise determined by the Board, the
Committee shall be the Corporate Personnel Committee of the
Board.
“Company” shall mean
Freeport-McMoRan Copper & Gold Inc.
“Designated Beneficiary” shall mean
the beneficiary designated by the Participant, in a manner
determined by the Committee, to receive the benefits due the
Participant under the Plan in the event of the Participant’s
death. In the absence of an effective designation by the
Participant, Designated Beneficiary shall mean the
Participant’s estate.
“Employee” shall mean (i) any person
providing services as an officer of the Company or a Subsidiary,
whether or not employed by such entity, including any such person
who is also a director of the Company, (ii) any employee of the
Company or a Subsidiary, including any director who is also an
employee of the Company or a Subsidiary, (iii) any officer or
employee of an entity with which the Company has contracted to
receive executive or management services who provides services to
the Company or a Subsidiary through such arrangement and
(iv) any person
who has agreed in writing to become a person described in clauses
(i), (ii) or (iii) within not more than 30 days following the date
of grant of such person’s first Award under the
Plan.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended from time to
time.
“Incentive Stock Option” shall mean
an option granted under Section 6 of the Plan that is intended to
meet the requirements of Section 422 of the Code or any successor
provision thereto.
“Limited Right” shall mean any right
granted under Section 8 of the Plan.
“Nonqualified Stock Option” shall
mean an option granted under Section 6 of the Plan that is not
intended to be an Incentive Stock Option.
“Offer” shall mean any tender offer,
exchange offer or series of purchases or other acquisitions, or any
combination of those transactions, as a result of which any person,
or any two or more persons acting as a group, and all affiliates of
such person or persons, shall beneficially own more than 40% of all
classes and series of the Company’s stock outstanding, taken
as a whole, that has voting rights with respect to the election of
directors of the Company (not including any series of preferred
stock of the Company that has the right to elect directors only
upon the failure of the Company to pay dividends).
“Offer Price” shall mean the highest
price per Share paid in any Offer that is in effect at any time
during the period beginning on the ninetieth day prior to the date
on which a Limited Right is exercised and ending on and including
the date of exercise of such Limited Right. Any securities or
property that comprise all or a portion of the consideration paid
for Shares in the Offer shall be valued in determining the Offer
Price at the higher of (i) the valuation placed on such securities
or property by the person or persons making such Offer, or (ii) the
valuation, if any, placed on such securities or property by the
Committee or the Board.
“Option” shall mean an Incentive
Stock Option or a Nonqualified Stock Option.
“Other Stock-Based Award” shall mean
any right or award granted under Section 9 of the
Plan.
“Participant” shall mean any
Employee granted an Award under the Plan.
“Person” shall mean any individual,
corporation, partnership, association, joint-stock company, trust,
unincorporated organization, government or political subdivision
thereof or other entity.
“Rule 16b-3” shall mean Rule 16b-3
promulgated by the SEC under the Exchange Act, or any successor
rule or regulation thereto as in effect from time to
time.
“SAR” shall mean any Stock
Appreciation Right.
“SEC” shall mean the Securities and
Exchange Commission, including the staff thereof, or any successor
thereto.
“Shares” shall mean the shares of
Class B Common Stock, par value $0.10 per share, of the Company and
such other securities of the Company or a Subsidiary as the
Committee may from time to time designate.
“Stock Appreciation Right” shall
mean any right granted under Section 7 of the Plan.
“Subsidiary” shall mean (i) any
corporation or other entity in which the Company possesses directly
or indirectly equity interests representing at least 50% of the
total ordinary voting power or at least 50% of the total value of
all classes of equity interests of such corporation or other entity
and (ii) any other entity in which the Company has a direct or
indirect economic interest that is designated as a Subsidiary by
the Committee.
SECTION 3
Administration . The Plan shall be administered by the
Committee. Subject to the terms of the Plan and applicable law, and
in addition to other express powers and authorizations conferred on
the Committee by the Plan, the Committee shall have full power and
authority to: (i) designate Participants; (ii) determine the type
or types of Awards to be granted to an eligible Employee; (iii)
determine the number of Shares to be covered by, or with respect to
which payments, rights or other matters are to be calculated in
connection with, Awards; (iv) determine the terms and conditions of
any Award; (v) determine whether, to what extent, and under what
circumstances Awards may be settled or exercised in cash, whole
Shares, other whole securities, other Awards, other property or
other cash amounts payable by the Company upon the exercise of that
or other Awards, or canceled, forfeited or suspended and the method
or methods by which Awards may be settled, exercised, canceled,
forfeited or suspended; (vi) determine whether, to what extent, and
under what circumstances cash, Shares, other securities, other
Awards, other property, and other amounts payable by the Company
with respect to an Award shall be deferred either automatically or
at the election of the holder thereof or of the Committee; (vii)
interpret and administer the Plan and any instrument or agreement
relating to, or Award made under, the Plan; (viii) establish,
amend, suspend or waive such rules and regulations and appoint such
agents as it shall deem appropriate for the proper administration
of the Plan; and (ix) make any other determination and take any
other action that the Committee deems necessary or desirable for
the administration of the Plan. Unless otherwise expressly provided
in the Plan, all designations, determinations, interpretations and
other decisions under or with respect to the Plan or any Award
shall be within the sole discretion of the Committee, may be made
at any time and shall be final, conclusive and binding upon all
Persons, including the Company, any Subsidiary, any Participant,
any holder or beneficiary of any Award, any stockholder of the
Company and any Employee.
SECTION 4
Eligibility . Any Employee who is not a member of the
Committee shall be eligible to be granted an Award.
SECTION 5
(a)
Shares Available for
Awards . Subject to
adjustment as provided in Section 5(b):
(i)
Calculation of Number of Shares
Available . The number of
Shares with respect to which Awards may be granted under the Plan
shall be 10,000,000. Shares subject to Awards that are not granted
in tandem with an Option and that by their terms may be settled
only in cash shall not be counted against such total, except as may
be required to comply with Rule 16b-3. If, after the effective date
of the Plan, an Award granted under the Plan expires or is
exercised, forfeited, canceled or terminated without the delivery
of Shares, then the Shares covered by such Award or to which such
Award relates, or the number of Shares otherwise counted against
the aggregate number of Shares with respect to which Awards may be
granted, to the extent of any such expiration, exercise,
forfeiture, cancellation or termination without the delivery of
Shares, shall again be, or shall become, Shares with respect to
which Awards may be granted.
(ii)
Substitute Awards
. Any Shares delivered by the
Company, any Shares with respect to which Awards are made by the
Company, or any Shares with respect to which the Company becomes
obligated to make Awards, through the assumption of, or in
substitution for, outstanding awards previously granted by an
acquired company or a company with which the Company combines,
shall not, except in the case of Shares with respect to which
Awards are granted to Employees who are officers or directors of
the Company for purposes of Section 16 of the Exchange Act or any
successor section thereto, be counted against the Shares available
for Awards under the Plan.
(iii)
Sources of Shares Deliverable
Under Awards . Any Shares
delivered pursuant to an Award may consist of authorized and
unissued Shares or of treasury Shares, including Shares held by the
Company or a Subsidiary and Shares acquired in the open market or
otherwise obtained by the Company or a Subsidiary.
(iv)
Individual Limit
. Any provision of the Plan to the
contrary notwithstanding, no individual may receive in any year
Awards under the Plan that relate to more than 1,750,000
Shares.
(b)
Adjustments
. In the event that the Committee
determines that any dividend or other distribution (whether in the
form of cash, Shares, Subsidiary securities, other securities or
other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase or exchange of Shares or other securities
of the Company, issuance of warrants or other rights to purchase
Shares or other securities of the Company, or other similar
corporate transaction or event affects the Shares such that an
adjustment is determined by the Committee to be appropriate to
prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan, then the
Committee shall, in such manner as it may deem equitable, adjust
any or all of (i) the number and type of Shares (or other
securities or property) with respect to which Awards may be
granted, (ii) the number and type of Shares (or other securities or
property) subject to outstanding Awards, and (iii) the grant or
exercise price with respect to any Award and, if deemed
appropriate, make provision for a cash payment to the holder of an
outstanding Award and, if
deemed
appropriate, adjust outstanding Awards to provide the rights
contemplated by Section 9(b) hereof; provided , in each
case, that with respect to Awards of Incentive Stock Options no
such adjustment shall be authorized to the extent that such
authority would cause the Plan to violate Section 422(b)(1) of the
Code or any successor provision thereto and, with respect to all
Awards under the Plan, no such adjust
