DEFERRED COMPENSATION AGREEMENT
Exhibit
10.2
THIS AGREEMENT, dated as of
_____________________, is by and between MAXXAM Inc., a Delaware corporation
(the “Company”), and ____________________ (the “Employee”), currently residing
at _________________________________________________.
WITNESSETH:
WHEREAS, the Employee
currently serves as _________________________ of the Company and receives
compensation in that capacity; and
WHEREAS, the Employee desires
to enter into an arrangement providing for the deferral of certain salary and/or
bonus compensation which may otherwise be paid to Employee; and
WHEREAS, the Company is
agreeable to such an arrangement;
NOW, THEREFORE, it is agreed
as follows:
1. The
Employee irrevocably elects to defer receipt, subject to the provisions of this
Agreement, of [complete A and/or B]:
|
|
A.
|
____percent
of gross salary per pay period otherwise payable to the Employee during
calendar year ____[may not be current year], not to exceed $________ for
the year [may not exceed 30%]; and
|
|
|
B.
|
____percent
of any bonus which may otherwise become payable to the Employee in respect
of services rendered during the calendar year ____, not to exceed
$__________ for the year [may not exceed
30%].
|
Salary
and/or bonus amounts with respect to which the Employee shall have elected to
defer receipt are hereinafter referred to as “Deferred Compensation.” The
foregoing election shall not be valid unless it is submitted, with paragraph 6
properly completed, before the end of the calendar year preceding the calendar
year in which the salary or bonus to be deferred is earned.
2. The
Company shall credit the amount of Deferred Compensation to a book account (the
“Deferred Compensation Account”) as of the date such salary or bonus amount
would have been paid to the Employee had this Agreement not been in
effect.
3. Earnings
shall be credited to the Deferred Compensation Account as follows:
The balance credited to the Deferred
Compensation Account as of the last business day of each quarter shall be
increased by an amount reflecting interest on such balance for such quarter
calculated using one-quarter of (i) the sum of the Prime Rate on the first day
of such quarter plus (ii)
2.00%. For this purpose, the “Prime Rate” shall mean the highest
prime rate (or base rate) reported for such date in the Money Rates column or
section of The Wall Street
Journal as the rate in effect for corporate loans at large U.S. money
center commercial banks (whether or not such rate has actually been charged by
any such bank) as of such date. In the event The Wall Street Journal ceases publication
of such rate, the “Prime Rate” shall mean the prime rate (or base rate) reported
for such date in such other publication that publishes such prime rate
information as the Company may choose to rely upon.
4. The
Company shall provide an annual statement to the Employee showing such
information concerning the Employee’s Deferred Compensation Account as is
appropriate, including the Deferred Compensation, earnings and aggregate amount
credited to the Deferred Compensation Account, as of a reasonably current
date. If amounts which are a part of the Deferred Compensation
Account which, prior to payment of such account to the Employee, are determined
to be taxable to the Employee, such taxable amounts shall be immediately paid to
the Employee less required
withholding taxes.
5. The
Company’s obligation to make payments from the Deferred Compensation Account
shall be a general obligation of the Company and such payments shall be made
from the Company’s general assets. The Employee’s relationship to the
Company under this Agreement shall be only that of a general unsecured creditor,
and this Agreement (including any action taken pursuant hereto) shall not, in
and of itself, create or be construed to create a trust or fiduciary
relationship of any kind between the Company and the Employee, his or her
designated beneficiary or any other person, or a security interest of any kind
in any property of the Company in favor of the Employee or any other
person. The arrangement created by this Agreement is intended to be
unfunded and no trust, security, escrow, or similar account shall be required to
be established for the purposes of payment hereunder. However, the
Company may in its discretion establish a “rabbi trust” (or other arrangement
having equivalent taxation characteristics under the Internal Revenue Code of
1986, as amended, or applicable Treasury regulations or rulings; together
referred to as the “Code”) to hold assets, subject to the claims of the
Company’s creditors in the event of insolvency, for the purpose of
making payments hereunder. If the Company establishes such a trust,
amounts paid therefrom shall discharge the obligations of the Company hereunder
to the extent of the payments so made.
6. Deferred
Compensation, including all earnings credited to the Deferred Compensation
Account pursuant to paragraph 3, shall be paid (or commence to be paid) in cash
to the Employee on the thirtieth (30th)
business day following the date the Employee ceases for any reason to be an
Employee of the Company. Payments shall be made in the form indicated
below (and the deferral election made pursuant to paragraph 1 above shall be
considered null and void if this paragraph 6 is not properly
completed):
☐ in
a lump sum, or
☐ in
_________ installments (not to exceed 10) payable as set forth
herein.
After an
initial installment payment is made in accordance with the foregoing, the
subsequent installment payments shall be made on the next March 31 and each
March 31 thereafter and shall be in an amount equal to the balance credited to
the Deferred Compensation Account as of that date divided by the number of
installments (including the one then due) remaining to be
paid. Amounts credited to the Deferred Compensation Account during
the period in which installments are paid shall be adjusted to reflect the
crediting of earnings in accordance with paragraph 3. Any payment
actually made within the grace period permitted under section 409A of the Code
shall be considered made on the specified payment date for all purposes of this
Agreement.
Notwithstanding
the foregoing provisions of this paragraph 6, any payment otherwise due during
the first six (6) months following termination of employment to an Employee who
is a specified employee shall be delayed until the first business day that is
six (6) months after such Employee’s termination of employment, and shall
include accrued interest at the rate applicable to such six-month period under
paragraph 3 of this Agreement. For purposes of this Agreement the
terms “specified employee” and “termination of employment” shall have the
meaning given such terms in section 409A of the Code, in each case using the
default provisions set forth in applicable Treasury regulations.
7. Payments
hereunder shall be made to the Employee except that:
|
|
(a)
|
in
the event that the Employee shall be determined by a court of competent
jurisdiction to be incapable of managing his financial affairs, and if the
Company has actual notice of such determination, payment shall be made to
the Employee’s personal representative(s);
and
|
|
|
(b)
|
in
the event of the Employee’s death, payment of the balance of the
Employee’s Deferred Compensation Account shall be made in a single lump
sum payment (even if the Employee had elected or was receiving installment
payments) thirty (30) days after the death of the Employee to the last
beneficiary designated by the Employee (see Designation of
Beneficiary(ies) attached hereto) for purposes of receiving such payment
in such event in a written notice delivered to the Secretary of the
Company; provided, that if such beneficiary has not survived the Employee,
or no valid beneficiary designation is in effect, payment shall instead be
made to the Employee’s estate.
|
The
Company shall deduct from any payment hereunder any amounts required for federal
and/or State and/or local withholding tax purposes.
8. Any
balance credited to the Deferred Compensation Account shall not in any way be
subject to the debts or other obligations of the Employee and, except as
provided in paragraph 7(b), shall not be subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment,
garnishment or other legal or equitable process.
9. This
Agreement shall not be construed to confer on the Employee any right to be or
remain in the employ of the Company or of any subsidiary or affiliate of the
Company, or to receive any, or any particular rate of,
compensation.
10. Interpretations
of, and determinations related to, this Agreement, including any determinations
of the amount credited to the Deferred Compensation Account, shall be made by
the Compensation Policy Committee of the Board of Directors (or the Section
162(m) Compensation Committee in the case of deferral of all or any part of a
bonus awarded under a plan administered by such Committee) of the Company and
shall be conclusive and binding upon all parties. The Company shall
incur no liability to the Employee for any such interpretation or determination
so made or for any other action taken by it in connection with this Agreement in
good faith.
11. This
Agreement contains the entire understanding and agreement between the parties
with respect to the subject matter hereof, and may not be amended, modified or
supplemented in any respect except by a subsequent written agreement entered
into by both parties.
12. This
Agreement shall be binding upon, and shall inure to the benefit of, the Company
and its successors and assigns and the Employee and his or her heirs, executors,
administrators and personal representatives.
13. No
term or condition of this Agreement shall be deemed to have been waived, nor
shall there by an estoppel against the enforcement of any provision of this
Agreement, except by written instrument of the party charged with such waiver or
estoppel. Any waiver by either party hereto of a breach of any
provision of this Agreement by the other party shall not operate or be construed
as a waiver by such party of any subsequent breach thereof.
14. In
the event that any provision of this Agreement is declared invalid and not
binding on the parties hereto on a final decree or order issued by a court of
competent jurisdiction, such declaration shall not offset the validity of the
other provisions of this Agreement to which such declaration of invalidity does
not relate and such other provisions shall remain in full force and
effect.
15. This
Agreement shall be governed and construed in accordance with the laws of the
State of Texas, without regard to principles of choice of law, except to the
extent preempted to the Employee Retirement Income Security Act of 1974, as
amended, or other applicable federal law. This Agreement is intended
to comply with section 409A of the Code and shall be construed
accordingly.
IN WITNESS WHEREOF, the
Company has caused this Agreement to be executed on its behalf by its duly
authorized officer, and the Employee has executed this Agreement, as of the date
first written above.
|
|
By:
|
____________________________________
|
|
|
Its:
|
____________________________________
|
__________________________________________
[Employee]
DESIGNATION
OF BENEFICIARY(IES)
Date: ______________________
TO: HUMAN
RESOURCES DEPARTMENT
In accordance with the provisions of
the Deferred Compensation Agreement dated as of ___________ ____, 20__, between
the undersigned Employee and MAXXAM Inc., I hereby designate
___________________________________________________* currently residing
at _________________________________________________________________________________________________________________________*,
whose Social Security number(s) is (are) _________________________________, as
my beneficiary(ies) to receive payments thereunder in the event of my death
before payments due thereunder have been made in full. In the event
that the said beneficiary(ies) predecease(s) me, I hereby designate
________________________
___________*
currently residing at
________________________________________________
___________________________________________*,
whose Social Security number(s) is (are) __________________________*, as my
beneficiary(ies) thereunder.
I intend that my execution and delivery
of this Designation of Beneficiary(ies) form shall revoke any and all prior
designation(s) of beneficiary(ies) that I may have made under the
Agreement.
EMPLOYEE:
__________________________________________
__________________________________________
[Printed Name of Employee]
___________________________
*If more
than one beneficiary is to be designated, list the beneficiaries and specify the
percentage of each payment to be received by each beneficiary and the address
and Social Security number of each beneficiary.
0174AGT8.BLB.DOC
