exv10w38








 




    Exhibit
    10.38



 


 




    FIRST
    AMENDMENT

    TO THE

    FEDERAL HOME LOAN MORTGAGE CORPORATION

    SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

    (As Amended and Restated January 1, 2008)



 



    FIRST AMENDMENT TO THE FEDERAL HOME LOAN MORTGAGE CORPORATION
    SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN (the “Plan”) by
    the FEDERAL HOME LOAN MORTGAGE CORPORATION (the
    “Corporation”), a corporation organized and existing
    under the laws of the United States of America.



 




    W I T N E
    S S E T H:



 



    WHEREAS, the Plan was restated effective January 1, 2008;



 



    WHEREAS, the Compensation Committee of the Board of Directors of
    the Corporation (the “Committee”), with the approval
    of the Federal Housing Finance Agency, implemented the Executive
    Management Compensation Program (“Executive Compensation
    Program”), modifying the compensation structure for certain
    eligible employees with the titles of Senior Vice President and
    above to require mandatory deferral of certain compensation,
    which Executive Compensation Program is anticipated to be in
    place on an interim basis while the Corporation is in
    conservatorship;



 



    WHEREAS, pursuant to the authority granted to the Committee to
    amend the Plan under both Plan Section 8.1 and Resolution
    FHLMC
    2009-03, the
    Committee has determined that it is appropriate to amend the
    Plan to include certain aspects of compensation provided under
    the Executive Compensation Program in the Plan benefit formulas,
    because, among other reasons, mandatorily deferred amounts that
    are provided for under the Executive Compensation Program are
    excluded from consideration under the Federal Home Loan Mortgage
    Corporation Employees’ Pension Plan and the Federal Home
    Loan Mortgage Corporation Thrift/401(k) Savings Plan; and



 



    WHEREAS, the appropriate officer of the Corporation has been
    duly authorized to execute this amendment.



 



    NOW, THEREFORE, the Plan is amended, as follows, effective as of
    the dates specified below:



 



    1. Section 2.2 is hereby amended in its entirety to
    read as follows, effective January 1, 2009:



 



    2.2 Administrator. The Compensation Committee of the
    Board, or any successor to that committee.



 



    2. Section 2.8 is hereby amended in its entirety to
    read as follows, effective January 1, 2009:



 



    2.8 Deferred Amounts. Deferred Amounts are as
    follows:














 







    (a) Amounts Deferred Under the Federal Home Loan Mortgage
    Corporation Executive Deferred Compensation Plan. Any amount
    deferred by Executives for future payment under the Federal Home
    Loan Mortgage Corporation Executive Deferred Compensation Plan.
    Deferral amounts under the Federal Home Loan Mortgage
    Corporation Executive Deferred Compensation Plan shall be
    determined at the time(s) of deferral.



 



    (b) Amounts Deferred Under the Federal Home Loan
    Mortgage Corporation Mandatory Executive Deferred Base Salary
    Plan. Amounts paid to an Executive under the Federal Home
    Loan Mortgage Corporation Mandatory Executive Deferred Base
    Salary Plan; provided, however, that deferrals under the
    Federal Home Loan Mortgage Corporation Mandatory Executive
    Deferred Base Salary Plan shall only be Deferred Amounts under
    this Plan to the extent, and at the time, that such amounts
    become vested and are distributable under the Federal Home Loan
    Mortgage Corporation Mandatory Executive Deferred Base Salary
    Plan, and only if the Participant is an employee of the
    Corporation at such date(s).



 



    3. Section 4.1(b) is amended in its entirety to read
    as follows, effective January 1, 2009:



 



    (b) No Thrift/401(k) SERP Benefit will be accrued for a
    Participant (i) with respect to the Basic Contribution
    unless the Participant is employed on the last day of the
    calendar year in question; (ii) with respect to the
    Matching Contribution, unless the Participant has made the
    maximum contribution described in Section 3.1 above; and
    (iii) with respect to amounts deferred under the Federal
    Home Loan Mortgage Corporation Mandatory Deferred Base Salary
    Plan, unless such amounts satisfy the requirements of
    Section 2.8(b).



 



    4. Section 4.1(b) is amended to add the following at
    the end thereof, effective January 1, 2010:



 



    ; and (iv) with respect to pay in excess of 200% of a
    Participant’s “semi-monthly base salary” (as
    defined in the Executive Management Compensation Program) for
    the calendar year, for any year in which a Participant is
    covered by the Executive Management Compensation Program).



 



    5. Section 5.1 is amended in its entirety to read as
    follows, effective January 1, 2009:



 



    5.1. Basis of Benefit.



 



    (a) The Pension SERP Benefit will be determined based on:
    (i) the Executive’s calendar year Compensation;
    (ii) the limitation set forth in Code Section 415(b)
    (or successor thereto) for the calendar year; (iii) the
    compensation cap described in Code Section 401(a)(17) (or
    successor thereto) for the calendar year and; (iv) the
    exclusion of Deferred Amounts from the definition of
    compensation (or its equivalent) under the Pension Plan. A
    Pension SERP Benefit shall be payable only if the Participant is
    vested under the Pension Plan.





    

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    (b) No Pension SERP Benefit shall be accrued for a
    Participant with respect to (i) amounts deferred under the
    Federal Home Loan Mortgage Corporation Mandatory Executive
    Deferred Base Salary Plan, unless such amounts satisfy the
    requirements of Section 2.8(b).



 



    6. Section 5.1(b) is amended to add the following at
    the end thereof, effective January 1, 2010:



 



    ; and (ii) pay in excess of 200% of a
    Participant’s “semi-monthly base salary” (as
    defined in the Executive Management Compensation Program) for
    the calendar year, for any year in which a Participant is
    covered under the Executive Management Compensation Program)



 



    7. Section 9.10 is added to read as follows effective
January 1, 2009:



 



    9.10 Recapture. Notwithstanding any provision of
    this Plan to the contrary, to the extent that a
    Participant’s benefit hereunder takes into account pay that
    is subject to a recapture, clawback or similar agreement, and
    such pay is recaptured, clawed back, etc. under such agreement,
    then benefits provided under this Plan that were based upon the
    recaptured pay shall be either (a) repaid by the
    Participant (or his Beneficiary as determined pursuant to
    Section 6.3(c)) to the extent previously distributed or
    (b) cancelled by the Administrator, to the extent not yet
    distributed.



 



    IN WITNESS WHEREOF, the Corporation has caused this FIRST
    AMENDMENT TO THE FEDERAL HOME LOAN MORTGAGE CORPORATION
    SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN to be executed by its
    duly authorized representative
    this 23rd day
    of December, 2009.



 



    FEDERAL HOME LOAN

    MORTGAGE CORPORATION




 



    By: /s/ Scott Coolidge                                                       





    Scott Coolidge

    Vice President-Compensation and Benefits




    ATTEST:





     




    /s/ Mollie Roy                                                            
Mollie Roy

Assistant Secretary






    

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