exh10_64.htm


    
      Exhibit
10.64

      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      


      MAXXAM
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN

      


      (As
amended effective December 31, 2008)

      


      


      


      


      


      


      


      


      



      
        
          
            MI SERP
(2008 amend’t).final.BLB.DOC

          

           


        

        
           


          
            

          

        

        
           


        

      


      TABLE OF
CONTENTS

      


      
        	 
      	
                        
      Page

              
	 
      
	
                SECTION
      I - DEFINITIONS

              	
                1

              
	
                1.1

              	
                Administrative
      Committee

              	
                1

              
	
                1.2

              	
                Code

              	
                1

              
	
                1.3

              	
                Company

              	
                1

              
	
                1.4

              	
                Effective Date

              	
                1

              
	
                1.5

              	
                Employer

              	
                1

              
	
                1.6

              	
                409A

              	
                1

              
	
                1.7

              	
                Participant

              	
                1

              
	
                1.8

              	
                Pension Plan

              	
                2

              
	
                1.9

              	
                Plan

              	
                2

              
	 
      
	
                SECTION
      II – BENEFITS

              	
                2

              
	
                2.1

              	
                Amount of
    Benefits

              	
                2

              
	
                2.2

              	
                Time and Form of Payment of
      Benefits

              	
                2

              
	
                2.3

              	
                Death Benefits

              	
                2

              
	
                2.4

              	
                Payment Dates

              	
                3

              
	 
      
	
                SECTION
      III – LIABILITY FOR PAYMENTS

              	
                3

              
	
                3.1

              	
                In General

              	
                3

              
	
                3.2

              	
                Unfunded Plan

              	
                3

              
	 
      
	
                SECTION
      IV – ADMINISTRATION

              	
                3

              
	 
      
	
                SECTION
      V – AMENDMENT AND TERMINATION

              	
                3

              
	 
      
	
                SECTION
      VI – MISCELLANEOUS

              	
                4

              
	
                6.1

              	
                No Employment
      Rights

              	
                4

              
	
                6.2

              	
                Forfeiture

              	
                4

              
	
                6.3

              	
                Non-Alienation of
      Benefits

              	
                4

              
	
                6.4

              	
                Claims
    Procedure

              	
                4

              
	
                6.5

              	
                Liability Limited and
      Indemnification

              	
                4

              
	
                6.6

              	
                Tax
Withholding

              	
                5

              
	
                6.7

              	
                Separability

              	
                5

              
	
                6.8

              	
                Captions

              	
                5

              
	
                6.9

              	
                Usage

              	
                5

              
	
                6.10

              	
                Governing Laws

              	
                5

              


      

      



      
        
          
            MI SERP
(2008 amend’t).final.BLB.DOC

          

           


        

        
           


          
            

          

        

        
           


        

      


      MAXXAM
SUPPLEMENTAL RETIREMENT PLAN

      (As
amended effective December 31, 2008)

      
   MAXXAM Inc. has
established this Supplemental Executive Retirement Plan in order to provide
certain participants in the Pension Plan (as defined below) with the same
retirement benefits they would have received under the Pension Plan were it not
for certain limitations on benefits imposed by the Code (as defined
below).  Effective January 1, 2005, this Plan became subject to 409A
(as defined below) and this amendment and restatement of the Plan is intended to
bring it into compliance therewith.

       

      SECTION
I

       

      DEFINITIONS

                 


                 For
purposes of this Plan, the following terms shall have the meanings set forth
below.

       

                 1.1.    Administrative
Committee.  The Administrative Committee appointed under the
Pension Plan.

       

                 1.2.   
Code.  The
Internal Revenue Code of 1986, as amended from time to
time.  References to a specific provision of the Code shall include
such provision, any valid regulation or ruling promulgated thereunder, and any
comparable provision of future law that amends, supplements or supersedes such
provision.

       

                 1.3.    Company.  MAXXAM
Inc., a Delaware corporation, and any successor thereof by merger, consolidation
or otherwise.

       

                1.4.   
Effective
Date.  The Effective Date of this amendment and restatement is
December 31, 2008.  This amendment and restatement shall not apply to
any individual who terminated employment with the Employers prior to January 1,
2005 and whose entire benefit under the Plan was earned and vested prior to such
date.  Notwithstanding any other provision of this amendment and
restatement, any such “grandfathered” individual shall continue to be covered
under the provisions of the Plan as in effect on December 31, 2004, and the
provisions of this amendment and restatement shall not affect the manner in
which such individual’s vested benefit is distributed.

       

                
1.5.    Employers.  The
Company and any other corporation, partnership or other entity that has adopted
the Pension Plan.

       

                
1.6.    409A.  Section
409A of the Code and applicable Treasury regulations and other guidance of
general application thereunder, including Notices 2005-1 and
2007-86.

       

                 1.7.   
Participant.  An
individual (other than a grandfathered individual described in section 1.4
hereof) who is a participant in the Pension Plan and who is selected by the
Board of Directors of the Company (or a committee thereof) in its sole
discretion to participate in this Plan.

       


      
        
          
            


            MI SERP
(2008 amend’t).final.BLB.DOC

            


          

           


        

        
          - 1
-

          
            

          

        

        
           


        

      

       

                
1.8.    Pension
Plan.  The MAXXAM Pension Plan.

       

                 1.9.   
Plan.
This MAXXAM Supplemental Executive Retirement Plan.

       

      SECTION
II

       

      BENEFITS

       

                 2.1.    Amount of
Participant’s Benefits.  Each Participant shall be entitled to
receive under this Plan the actuarial equivalent of the difference between (a)
the benefit that would have been accrued by the Participant under the Pension
Plan as of December 31, 2005 but for (i) the maximum limitations on benefits
imposed by section 415 of the Code and (ii) the maximum amount of compensation
permitted to be taken into account under the Pension Plan because of the
provisions of section 401(a)(17) of the Code and (b) the benefit actually
accrued by the Participant under the Pension Plan as of December 31,
2005.  Actuarial equivalence for this purpose shall be determined
using the same actuarial assumptions that would be used under the Pension Plan
for a payment on the same date.

       

                 2.2.   
Time and
Form of Payment of Benefits.  A Participant who has not already
commenced payment under this Plan prior to the Effective Date (and who is not a
grandfathered individual described in section 1.4 hereof) shall be paid his
benefit under this Plan in a lump sum on the first day of the month following
the later of
the Participant’s termination of employment (within the meaning of 409A) or
attainment of age 65, unless such Participant, prior to December 31, 2008,
irrevocably elects payment hereunder in one of the alternative forms of
distribution available under the Pension Plan commencing on the payment date set
forth above.  Notwithstanding the foregoing, no payment under this
section 2.2 shall be made to a Participant who is a “specified employee” within
the meaning of 409A during the 6-month period immediately following his
termination of employment, and any such payment due during such 6-month period
shall be delayed, and shall be actuarially increased to reflect any such delay
in payment (using the assumptions under the Pension Plan for calculating lump
sum amounts), until the day following the expiration of the 6-month
period.

       

                 2.3.   
Death
Benefits.  Upon the death of a Participant (who is not a
grandfathered individual described in section 1.4) who has not already commenced
payment of his benefit prior to the Effective Date, his beneficiary shall
receive a lump sum payment 30 days after his death equal to the actuarial value
of (a) the survivor benefit that would have been paid to such beneficiary had
the Participant elected to receive his benefit under section 2.1 hereof under
the 100% contingent annuitant option (as described in the Pension Plan)
commencing on the first day of the month following the later of his death or
attainment of age 65, if such Participant dies before commencement of his
benefit hereunder; or (b) the survivor annuity (or period certain payments), if
any, the beneficiary would have received under the form of payment the
Participant was receiving at the time of his death, if such Participant dies
after commencement of his benefit hereunder; provided that such Participant may
elect, no later than December 31, 2008, to have the actuarial equivalent of the
survivor benefit due his beneficiary, if any, under clause (a) or clause (b)
above, paid in its original form rather than being converted to a lump sum,
commencing 30 days after the Participant’s death.  For purposes of the
foregoing, actuarial value and actuarial equivalence shall be determined using
the appropriate actuarial assumptions under the Pension Plan.  In the
case of a Participant 

       


      
        
          
            


            MI SERP
(2008 amend’t).final.BLB.DOC

            


          

           


        

        
          - 2
-

          
            

          

        

        
           


        

      


      (who is
not a grandfathered individual described in section 1.4) who already commenced
payment of his benefit under this Plan prior to the Effective Date, his
beneficiary shall be paid the survivor annuity (or period certain payments), if
any, due upon his death under the form of payment the Participant was receiving
at the time of his death, commencing 30 days after his
death.   The beneficiary to whom amounts are payable under this
Plan after the death of the Participant shall be the same as the beneficiary to
whom amounts are payable under the Pension Plan after the death of the
Participant, provided that once a Participant has either commenced payment
hereunder or made the election described in the first sentence of this Section
2.3, his beneficiary for purposes of this Plan may not be changed.

       

                
2.4.    Payment
Dates.  Any amount paid before or after the payment date
specified in this Section II shall be considered paid on such specified payment
date if it is actually paid within the applicable grace period permitted by
409A.  Any such deviation from the specified payment date shall be
within the sole discretion of the Administrative Committee or its
delegate.

       

      SECTION
III

       

      LIABILITY
FOR PAYMENTS

       

                 3.1.   
In
General.  Benefits payable under this Plan shall be the
liability of the Employer that employed the Participant with respect to whom
benefits are payable. If a Participant is entitled to benefits under this Plan
attributable to periods of employment with more than one Employer, the Company
shall determine the apportionment of liability among such
Employers.

       

                 3.2.   
Unfunded
Plan.  Benefits payable under this Plan shall not be funded,
but shall be paid out of the general assets of the applicable
Employer.

       

       

      SECTION
IV

       

      ADMINISTRATION

       

                
The Administrative Committee shall administer the Plan. The Administrative
Committee shall have full discretionary authority to determine all questions
arising in connection with the Plan, including its interpretation and the
determination of eligibility for benefits, may adopt procedural rules and may
employ and rely upon such legal counsel, actuaries, accountants and agents as it
may deem advisable to assist in the administration of the Plan. Subject to
Section 6.4, decisions of the Administrative Committee shall be conclusive and
binding on all persons.

       

      SECTION
V

       

      AMENDMENT
AND TERMINATION

       

                
To the extent permitted by 409A, the Company may amend or terminate the Plan at
any time; provided, that no such amendment or termination shall deprive any
Participant or his beneficiary of any right to the total amount of the benefits
that would have been payable under this Plan and under the Pension Plan prior to
such amendment or termination had such Participant
terminated employment immediately prior to the effective date of such amendment
or termination. Any such action by the Company shall be binding on all
Employers. To the extent permitted by 409A, any participating Employer (other
than the Company) may withdraw from the Plan by action of its Board of Directors
(or other governing body) and by giving at least 20 business days advance
written notice to the Company unless the Company waives such notice or agrees to
any shorter period of advance notice. As of the effective date of such
withdrawal the Plan shall be deemed to terminate with respect to the withdrawing
Employer.

       


      
        
          
            


            MI SERP
(2008 amend’t).final.BLB.DOC

            


          

           


        

        
          - 3
-

          
            

          

        

        
           


        

      

       

      SECTION
VI

       

      MISCELLANEOUS

       

                 6.1.   
No
Employment Rights.  The establishment of the Plan shall not be
construed as conferring any rights upon any employee or any person for a
continuation of his employment, nor shall it be construed as limiting in any way
the right of any Employer to discharge any employee or to treat him without
regard to the effect which such treatment might have upon him as a Participant
under the Plan.

       

                 6.2.   
Forfeiture.  Notwithstanding
any provision of this Plan to the contrary, if following termination of
employment for any reason a Participant is found guilty (by a court of competent
jurisdiction) of any act of fraud or dishonesty against an Employer, then all
rights which the Participant or his beneficiary may have under this Plan shall
be forfeited, any liability to the Employers to make payments hereunder shall
terminate, and any payments previously made hereunder shall be recoverable by
the Employers.

       

                 6.3.   
Non-Alienation
of Benefits.  Except as otherwise provided by law, no benefit,
interest, or payment under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or
charge, whether voluntary or involuntary, and no attempt to so anticipate,
alienate, sell, transfer, assign, pledge, encumber or charge the same shall be
valid nor shall any such benefit, interest, or payment be in any way liable for
or subject to the debts, contracts, liabilities, engagements or torts of the
person entitled to such benefit, interest, or payment or be subject to
attachment, garnishment, levy, execution or other legal or equitable
process.

       

                 6.4.   
Claims
Procedure.  The Administrative Committee shall establish a
claims procedure in accordance with applicable law and shall afford a reasonable
opportunity to any Participant whose claim for benefits has been denied for a
full and fair review of the decision denying such claim.

       

                 6.5.   
Liability
Limited and Indemnification.  Except as otherwise provided by
law, no Employer or any Person who is a member of the Administrative Committee
or who is a stock or other equity holder, employee, officer, director, or
manager of an Employer, shall incur any liability whatsoever on account of any
matter connected with or related to the Plan or the administration of the Plan,
unless such person shall have acted in bad faith or have willfully neglected his
duties in respect to the Plan; and as a condition precedent to his participation
in the Plan or the receipt of benefits thereunder, or both, such liability, if
any, is expressly waived and released by each Participant and beneficiary, and
by any and all persons claiming under or through
such persons, such waiver and release to be conclusively evidenced by any act or
participation in or the acceptance of benefits under this Plan. The Company
shall indemnify and hold each such natural person harmless against any and all
loss, liability, claim, damage, cost and expense which may arise by reason of,
or be based upon, any matter connected with or related to the Plan or the
administration of the Plan (including, but not limited to, any and all expenses
whatsoever reasonably incurred in investigating, preparing or defending against
any litigation or similar proceedings, commenced or threatened, or. in
settlement of any such claim whatsoever) to the fullest extent permitted under
the Certificate of Incorporation and By-Laws of the Company.

       


      
        
          
            


            MI SERP
(2008 amend’t).final.BLB.DOC

            


          

           


        

        
          - 4
-

          
            

          

        

        
           


        

      


                 6.6.   
Tax
Withholding.  Benefit payments hereunder shall be subject to
withholding, to the extent required by applicable tax or other
laws.

       

                 6.7.   
Separability.  If
any provision of this Plan is held invalid or unenforceable, to the extent
necessary to effectuate the purposes of this Plan, its invalidity or
unenforceability shall not affect any other provisions of the Plan and the Plan
shall be construed and enforced as if such provision had not been included
therein.

       

                 6.8.   
Captions.  Except
for the definitions in Section 1, the captions contained herein and the table of
contents prefixed hereto are inserted only as a matter of convenience and for
reference, and in no way define, limit, enlarge or describe the scope or intent
of this Plan nor in any way affect the Plan or the construction of any provision
thereof.

       

                 6.9.   
Usage.  Whenever
applicable, the masculine gender, when used in the Plan, shall include the
feminine or neuter gender, and the singular shall include the
plural.

       

                 6.10. 
Governing
Laws. The Plan shall be governed by and construed and administered under
the laws of the State of Texas, except to the extent that such laws are
preempted by Federal law.

       

      EXECUTED
as of the year and date set forth on the cover page hereof.

       

      


      
        	 
      	 
      	
                MAXXAM
      INC.

              
	 
      	 
      	 
      
	 
      	
                By:

              	
                /s/
      M. Emily Madison

              
	 
      	 
      	
                M.
      Emily Madison

              
	 
      	 
      	
                Vice
      President, Finance

              


      

      


        
          
            
              


              MI SERP
(2008 amend’t).final.BLB.DOC

              


            

             


          

          
            - 5
-