EXHIBIT 10.28
DEFERRED COMPENSATION AGREEMENT
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THIS DEFERRED COMPENSATION AGREEMENT, (the "Agreement") is made and
entered into on December 20, 2001 by and between LEUCADIA NATIONAL CORPORATION,
a New York corporation (the "Company"), and Xxxxxx X. Xxxx, (the "Executive"),
collectively the parties ("Parties").
WITNESSETH:
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WHEREAS, Executive is employed by the Company as Executive Vice
President; and
WHEREAS, in connection with the provision of services to the Company in
his capacity as Executive Vice President the Executive desires to defer the
receipt of certain compensation from the Company to which in the future he may
become entitled, and the Company agrees to do so, in accordance with the terms
and provisions herein contained;
NOW, THEREFORE, in consideration of the premises and the mutual
convenants and agreements herein contained, the Parties hereby agree as follows:
1. Deferral of Payments.
The Company shall defer the payment of 50% all bonus compensation,
other than Holiday Bonus, that may be awarded to the Executive by the Company
for the year 2001. The Executive acknowledges that the Company is under no
obligation to award any bonus to the Executive and that the award of any bonus,
as well as the amount of any bonus that may be awarded, remains fully
discretionary with the Company.
Each deferred payment shall accrue interest (on the basis of a 360-day
year), compounded annually, from the first day of the month immediately
following the date on which payment otherwise would have been made if no
deferral had existed (the "First New Month Date") until the date of actual
payment, at a rate of interest equal to the yield on Treasury bills maturing in
one year in effect at each First New Month Date, and the rate of interest shall
be reset on the first day of each subsequent quarter. For purposes hereof, the
quarters shall begin January 1, April 1, July 1, and October 1.
All amounts deferred pursuant to this Agreement, including interest,
shall be paid to the Executive in January 2003. Notwithstanding the preceding
sentence, to the extent that the aggregate deferred payments hereunder
(including interest) exceed the maximum annual amount deductible as compensation
by the Company under applicable U.S. federal tax laws, the Company may make such
payments in two or more installments in different taxable years to permit the
Company to obtain the maximum annual deduction available. In addition, to the
extent that the Company determines the aggregate deferred payments hereunder
(including interest) will not be fully deductible when paid as compensation by
the Company under applicable U.S. federal tax laws, the Company may prepay such
amounts to obtain the maximum tax deduction possible.
The rights of the Executive to the payment of the amounts pursuant to
this Agreement shall be no greater than the rights of an unsecured general
creditor of the Company and may not be assigned, pledged or otherwise
transferred by him during his lifetime to any person, whether by operation of
law or otherwise, and shall not be subject to execution, attachment or similar
proceeding. By written notice delivered to the Company, the Executive may
designate (or change a prior designation of) one or more beneficiaries (or his
estate) to receive payment hereunder in the event of his death.
2. Withholding.
The Executive acknowledges and agrees that the Company shall be
entitled to withhold from his compensation all federal, state, local or other
taxes which the Company determines are required to be withheld on amounts
payable to the Executive pursuant to this Agreement or otherwise. The Executive
further agrees to indemnify the Company and hold it harmless from and against
any and all taxes (and penalties thereon) and interest with respect thereto
arising out of the Executive's failure to pay fully his tax liability pursuant
to any present or future law, regulation or ordinance of the United States of
America or any state, city or municipality therein.
3. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
4. Entire Agreement.
This Agreement constitutes the entire agreement between the Parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements, understandings and arrangements, both oral and written, between the
Parties hereto with respect to such subject matter. This Agreement may not be
modified in any manner, except by a written instrument signed by both the
Company and the Executive.
5. Notices.
Any notice required or permitted to be given under this Agreement shall
be in writing and shall be deemed to have been duly given when delivered by hand
or facsimile transmission or when deposited in the United States mail by
registered or certified mail, return receipt requested, postage prepaid, as
follows:
If to the Company: Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Chief Financial Officer
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with a copy to: Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx
If to Executive: Xxxxxx X. Xxxx
c/o Leucadia National Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
or to such other addresses as either the Company or the Executive may
from time to time specify to the other.
6. Notice of Termination; Applicability of Agreement.
Amounts deferred pursuant to this Agreement shall be paid to the
Executive only as provided herein. At any time, by notice in writing from the
Executive to the Company, the Executive may terminate this Agreement whereupon
any compensation earned by the Executive subsequent to such notification shall
not be subject to the provisions hereof. Amounts earned prior to any such
notification shall remain subject to the terms hereof even after such
termination.
7. Benefit; Binding Effect.
This Agreement shall be for the benefit of and binding upon the Parties
hereto and their respective heirs, personal representatives, legal
representatives, successors and, where applicable, assigns.
IN WITNESS WHEREOF, the Parties hereto have executed and delivered this
Agreement as of the day and year first above written.
LEUCADIA NATIONAL CORPORATION
By: /s/ XXXXXX X. ORLANDO
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XXXXXX X. ORLANDO
/s/ XXXXXX X. XXXX
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XXXXXX X. XXXX
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