exh10_77.htm


    Exhibit
10.77

    


    


    DEFERRED
FEE AGREEMENT

    


    


    THIS AGREEMENT, dated as of
SEPTEMBER 1, 1994, is by and between MAXXAM INC., a Delaware corporation (the
"Company"), and EZRA G. LEVIN (the "Director"), currently residing at 5260
Sycamore, Riverdale-on-Hudson, Bronx, New York 10471.

     

    WITNESSETH:

     

    WHEREAS, the Director
currently serves as a member of the Board of Directors of the Company (the
"Board") and receives remuneration ("Director's Fees") from the Company in that
capacity; and

     

    WHEREAS, the Director desires
to enter into an arrangement providing for the deferral of Director's Fees;
and

     

    WHEREAS, the Company is
agreeable to such an arrangement;

     

    NOW, THEREFORE, it is agreed
as follows:

     

    1.           The
Director irrevocably elects to defer receipt, subject to the provisions of this
Agreement, of 100 percent of any Director's Fees which may otherwise become
payable to the Director for the Calendar year 1994 and which relate to services
performed after October 31, 1994.  Such election shall continue in
effect with respect to any Director's Fees which may otherwise become payable to
the Director for any calendar year subsequent to 1994 unless, prior to January 1
of such year, the Director shall have delivered to the Secretary of the Company
a written revocation of such election with respect to Director's Fees for
services performed after the date of such revocation. Until such time as the
election made under this paragraph is revoked, the percentage specified in the
first sentence hereof shall apply on each occasion on which Director's Fees
would otherwise be paid to the Director. Director's Fees with respect to which
the Director shall have elected to defer receipt are hereinafter referred to as
"Deferred Director's Fees."

     

    2.           The
Company shall credit the amount of Deferred Director's Fees to a book account
(the "Deferred Fee Account") as of the date such fees would have been paid to
the Director had this Agreement not been in effect. Director's Fees which would
otherwise be payable for attending a meeting of the Board or of a committee
thereof shall be credited to the Deferred Fee Account as of the first business
day following such meeting; Director's Fees which would otherwise be payable as
a retainer shall be credited to the Deferred Fee Account as of the first
business day of the period to which they relate.


    
      
         


      

      
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    3.           Earnings
shall be credited to the Deferred Fee Account as follows:

     

    (NOTE: (a) and (b) below must add up to
100%)

    


    
      	 
      	
              (a)

            	 
      	 
      	
              None

            	 
      	 
      	
              25%

            	 
      	
              X

            	
              50%

            	 
      	 
      	
              75%

            	 
      	 
      	
              100%

            


    

    


    of the
amount credited to the Deferred Fee Account pursuant to paragraph 2 shall be
deemed invested in a number of phantom shares (including any fractional share)
of the Company's Common Stock equal to the quotient of (a) such amount divided
by (b) the closing market price (the "Closing Price") of a share of Common Stock
as reported for the date such amount is credited to the Deferred Fee Account.
Whenever a cash dividend is paid on Common Stock, the Deferred Fee Account shall
be credited as of the payment date with a number of phantom shares (including
any fractional share) equal to the quotient of (y) an amount equal to the cash
dividend payable on a number of shares of Common Stock equal to the number of
phantom shares (excluding any fractional share) standing credited to such
Account at the record date divided by (z) the Closing Price on such payment
date. In the event of a stock dividend or distribution, stock split,
recapitalization or the like, the Deferred Fee Account shall be credited as of
the payment date with a number of phantom shares (including any fractional
share) equal to the number of shares (including any fractional share) of Company
Stock payable in respect of shares of Company Stock equal in number to the
number of phantom shares (excluding any fractional share) standing credited to
such Account at the record date. At the time any payment is to be made from the
Deferred Fee Account pursuant to paragraph 6, the number of phantom shares then
standing credited thereto shall be valued at the Closing Price on the first
business day of the month in which such payment is to be made, and such payment
shall be made in cash.

    


    
      	 
      	
              (b)

            	 
      	 
      	
              None

            	 
      	 
      	
              25%

            	 
      	
              X

            	
              50%

            	 
      	 
      	
              75%

            	 
      	 
      	
              100%

            


    

    


    of the
standing balance credited to the Deferred Fee Account as of the last business
day of each month shall be increased by an amount reflecting interest on such
balance for such month I calculated using one-twelfth of the Prime Rate on the
first day of such month. For this purpose the "Prime Rate" shall mean the prime
rate (or base rate) announced for such date by Bank of America (whether or not
such rate has actually been charged by such bank). In the event such bank
discontinues the practice of announcing the prime rate, the "Prime Rate" shall
mean the highest rate charged by such bank on short-term, unsecured loans to its
most creditworthy large corporate borrowers. In the event such bank ceases to
make unsecured loans to corporate  borrowers,
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
highest 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.


    
      
         


      

      
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    4.           The
Company shall provide an annual statement to the Director showing such
information as is appropriate, including the aggregate amount standing credited
to the Deferred Fee Account, as of a reasonably current date.

     

    5.           The
Company's obligation to make payments from the Deferred Fee Account shall be a
general obligation of the Company and such payments shall be made from the
Company's general assets. The Director'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 Director, 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 Director 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 or applicable regulations or rulings) 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
Director's Fees, including all earnings credited to the Deferred Fee Account
pursuant to paragraph 3, shall be paid in cash to the Director or his or her
designated beneficiary
as soon as practicable following the date the Director ceases for any reason to
be a member of the Board. Payments shall be made:

     

                                 
[   ]         in a lump
sum; or

     

                                 
[X]         in Ten annual installments (not to exceed
10).

     

    Each
annual installment payment shall be made as of January 31 and shall be an amount
equal to the balance standing credited to the Deferred Fee Account as of that
date divided by the number of installments (including the one then due)
remaining to be paid.  See Annex A.

     

    
      Amounts
standing credited to the Deferred Fee Account during the period in which
installments are paid shall be adjusted to reflect the crediting of earnings in
accordance with paragraph 3.

    

     

    
      
         


      

      
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    7.           Payments
hereunder shall be made to the Director except that:

     

    
      	
               
      

            	
              (a)

            	
              in
      the event that the Director 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 Director's personal representative(s); and

               

            


    

    
      	
               
      

            	
              (b)

            	
              in
      the event of the Director's death, payment shall be made to the last
      beneficiary designated by the Director 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
      Director, or no valid beneficiary designation is in effect, payment shall
      instead be made to the Director'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 standing credited to the Deferred Fee Account shall not in any way be
subject to the debts or other obligations of the Director 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 Director any right to be or
remain a member of the Board or to receive any, or any particular rate of,
Director's Fees.

    10.         Interpretations
of, and determinations related to, this Agreement, including any determinations
of the amount standing credited to the Deferred Fee Account, shall be made by
the Board and shall be conclusive and binding upon all parties. The Company
shall incur no liability to the Director 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 Director and his or her heirs, executors,
administrators and personal representatives.

     

    13.         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.


    
      
         


      

      
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    IN WITNESS WHEREOF, the Company
has caused this Agreement to be executed on its behalf by its duly authorized
officer, and the Director has executed this Agreement, on the date first written
above.

     

    
      	
              ATTEST:

            	 
      	
              MAXXAM
      INC.

            
	 
      	 
      	 
      
	
              /s/
      Nawasa Lafferty

            	 
      	
              By:

            	
              /s/
      Byron L. Wade

            
	
              Nawasa
      Lafferty, Assistant Secretary

            	 
      	 
      	
              Byron
      L. Wade, Vice President,

            
	 
      	 
      	 
      	
              Secretary
      & Deputy General Counsel

            
	 
      	 
      	 
      	 
      
	 
      	 
      	 
      	 
      
	 
      	 
      	
              /s/
      Ezra G. Levin

            
	 
      	 
      	
              Ezra
      G. Levin, Director

            


    


    
      
         


      

      
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    Annex
A

    


    Further adjustments between the date
the Director ceases to be a member of the Board and the date of subsequent
payments shall be in accordance with the phantom share account, as set forth in
paragraph 3(a), and the cash account, as set forth in paragraph 3(b), based on
the election of the director prior to the first installment
payment.