exv10w2








 



 






    Exhibit
    10.2







Attachment C







Recapture Agreement






	Triggering
Event	 	The recapture will be triggered if, at any time
during the executive’s employment with Freddie
Mac (or, under certain circumstances after
termination of the executive’s employment, as
described below), the Board determines and
notifies you in writing that any of the following
(“Triggering Events”) occurred:
	 
	 	 	1.	 	The executive has obtained a legally binding
right to bonus or incentive payment based on
materially inaccurate financial statements (which
includes, but is not limited to, statements of
earnings, revenues, or gains) or any other
materially inaccurate performance metric
criteria.
	 
	 	 	2.	 	The executive’s employment with Freddie Mac is
terminated for “cause” under subclauses (i) or
(iv) as defined below or, within two years of the
termination of the executive’s employment at
Freddie Mac, the Board makes a determination that
circumstances existed at the time of the
executive’s termination that would have justified
termination for cause under subclauses (i) or
(iv) or the executive was later convicted of or
pleaded nolo contendere to a felony committed
before the termination date and such felony
resulted in material business or reputational
harm to Freddie Mac.
	 
	 	 	3.	 	The executive’s employment with Freddie Mac is
terminated for “cause” under subclauses (ii) or
(iii) as defined below, or within two years of
the termination of the executive’s employment at
Freddie Mac, the Board makes a determination that
circumstances existed at the time of the
executive’s termination that would have justified
a termination for cause under subclauses (ii) or
(iii) as defined below and that actions of the
executive resulted in material business or reputational harm to Freddie Mac.
	 
	Definition of Cause	 	For purposes of this Recapture Agreement, “cause” shall mean the occurrence of one or more of the following:
	 
	 	 	 	 	(i) The executive is convicted of or pleads nolo
contendere to a charge of a felony or any crime
involving moral turpitude;
	 
	 	 	 	 	(ii) In carrying out his duties, the executive
engages in conduct that constitutes gross neglect
or gross misconduct or any material violation of
applicable Freddie Mac rule or policy, including
any






 











 









    Recapture Agreement

    Page 2 of 4



 



	 
	 	 	 	 	policy relating to investment by Freddie Mac
employees in securities, the violation of which
amounts to gross neglect or gross misconduct;
	 
	 	 	 	 	(iii) The executive materially breaches any
provision of the Memorandum Agreement dated
August 13, 2009 from Charles E. Haldeman to the
executive; or
	 
	 	 	 	 	(iv) Any other willful or malicious misconduct on
the executive’s part that is substantially
injurious to Freddie Mac.
	 
	 	 	•	In each case, “cause” shall not exist unless
and until Freddie Mac shall have provided: (i) 
reasonable notice to the executive setting forth
Freddie Mac’s intention to make a determination
that an event set forth in subclauses (i), (ii),
(iii) or (iv) has occurred; (ii) where remedial
action is appropriate and feasible, a reasonable
opportunity for the executive to take such
action; (iii) an opportunity for the executive,
together with the executive’s counsel, to be
heard before the Board; and (iv) executive with a
copy of a resolution duly adopted by a majority
of the entire Board of Directors at a meeting of
the Board of Directors called and held for such
purpose finding that in the good faith opinion of
the Board an event set forth in subclauses (i),
(ii), (iii) or (iv) has occurred. No act or
failure to act by the executive will be
considered “willful” unless it is done, or
omitted to be done, by the executive in bad faith
or without reasonable belief that the executive’s
action or omission was in the best interests of Freddie Mac.






 











 







    Recapture Agreement

    Page 3 of 4



 




	Recapture Period
	 	1.	 	In the case of the first Triggering Event,
compensation subject to recapture may include
Recapture Eligible Compensation (as defined
below) paid to the Executive for up to two years
prior to the Triggering Event.
	 
	 	 	2.	 	In the case of the second Triggering Event,
compensation subject to recapture may include
Recapture Eligible Compensation paid to the
Executive for up to two years prior to the date
that the executive is terminated or subsequent to
the termination of employment.
	 
	 	 	3.	 	In the case of the third Triggering Event,
compensation subject to recapture may include
Recapture Eligible Compensation paid to the
Executive at the time of termination of
employment or subsequent to the date of
termination.
	 
	 
	Compensation
Subject to
Recapture
	 	For purposes of this Recapture Agreement, “Recapture Eligible Compensation” shall consist of the following:
	 
	 	 	1.	 	In the case of the first Triggering Event,
Recapture Eligible Compensation consists of the
annual short-term incentive (“STI”) (i.e., the
annual bonus) and the annual long-term incentives
(“LTI”).
	 
	 	 	2.	 	In the case of the second and third Triggering
Events, Recapture Eligible Compensation consists
of the annual STI, the annual LTI and any
severance benefits paid.

	 
	 	 	In the event that the executive is terminated for
cause under any of the subclauses (i), (ii),
(iii) or (iv) specified in the Definition of
Cause above, the executive forfeits rights to any
future payment of annual STI, LTI or severance
benefits that might otherwise have been due
pursuant to the terms of applicable plans or
awards from the date of executive’s termination
forward.
	 
	 	 	With respect to any recapture of compensation:
	 
	 	 	•	 	A recapture of STI or other cash paid, for such
compensation that the Board determines is subject
to repayment, would require the executive to
repay the gross amount of the compensation
previously paid. Additionally, any further
obligation of Freddie Mac to make payments under
such plans could be cancelled.







 











 








    Recapture Agreement

    Page 4 of 4



 



	 
	 	 	•	 	A recapture of LTI or other stock-based award
granted, for such awards that the Board
determines, would require the executive to repay
Freddie Mac the full fair market value of the
award(s) based upon vesting date. Additionally,
any unvested and/or unexercised stock-based
awards could be cancelled.
	 
	 	 	•	 	Base salary paid prior to the date of the
Triggering Event is not subject to recapture.
	 
	 	 	•	 	The executive’s assets acquired prior to
employment by Freddie Mac or acquired from
sources other than Freddie Mac directly are not
subject to recapture under this agreement. The
right to recapture is not retroactive prior to
the date of employment.
	 
	Amount to
be
Recaptured 	 	The Board has discretion to determine the
appropriate amount required to be recaptured, if
any, upon a Triggering Event, which is intended
to be the compensation in excess of what Freddie
Mac would have paid the executive had Freddie Mac
taken into consideration the impact of the
Triggering Event at the time such compensation
was awarded.
	 
	 	 	Any disputes between the executive and Freddie
Mac concerning the occurrence of a Triggering
Event or the amount subject to recapture shall be
determined exclusively in accordance with the
substantive laws of the Commonwealth of Virginia,
excluding provisions of the Virginia law
concerning choice-of-law that would result in the
law of any state other than Virginia being
applied.







I agree to the terms of this Recapture Agreement







	 	 	 	 	 	 	 	 
	 	By:  	
/s/ Bruce M. Witherell	 	 	Date:  	
August 17, 2009	 
	 	  	Bruce M. Witherell