INDYMAC BANK, F.S.B. FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
EXHIBIT 10.23
This First Amendment to the Amended and Restated Employment Agreement (the “First Amendment”)
is made and entered into by and between IndyMac Bank, F.S.B. (the “Employer”), and Xxxxxxx X. Xxxx (the “Officer”), dated as of February 15, 2008.
BACKGROUND STATEMENT:
WHEREAS, the Employer and the Officer entered into that certain Amended and Restated
Employment Agreement to be effective as of September 1, 2007 (the “Original Agreement”); and
WHEREAS, the Employer and the Officer have determined that it is in their best interests to
amend the Original Agreement as set forth herein;
NOW, THERERFORE, in consideration of and reliance upon the foregoing and other good and
valuable consideration, the adequacy and sufficiency of which are hereby acknowledged, the
Employer and the Officer hereby amend the Original Agreement as follows:
1. Section 4(b)(ii) of the Original Agreement is hereby amended and restated as follows:
(ii) Long Term Annual Incentive Compensation. Officer shall receive an annual
Long Term Annual Incentive Compensation (“LTAIC”) award, which LTAIC award shall
generally be made at the same time as all other annual equity awards are made to senior
managers of Employer. Each such LTAIC shall consist of the following (which the parties
acknowledge is consistent with the current LTAIC arrangements of Employer’s senior
management team):
(A) An amount equal to twenty-five percent (25%) of the sum of Officer’s Base
Salary and prior year’s STAIC, which LTAIC award shall be awarded, in the
discretion of the Compensation Committee, in either (1) restricted stock under
Employer’s 2002 Stock Incentive Plan, as amended and restated or any successor plan
(the “Plan”), which award shall provide for a vesting schedule of not
greater than three (3) years, or (2) a cash amount, which amount shall be credited
to Officer’s account under the terms of Employer’s deferred compensation plan
established for purposes of deferring the portion of Officer’s LTAIC under this
Section 4(b)(ii)(A)(2) (the “LTAIC Deferral Plan”) and shall have an option to
invest in Employer stock, which award, in either case, shall have no forfeiture or
clawback provisions based on Officer’s post- employment activities (except as
otherwise required by applicable law); and
(B) An amount equal to fifty percent (50%) of Officer’s prior year’s STAIC,
which amount shall be awarded in (1) stock options pursuant to the terms of the
Plan (measured on the same basis as stock options are measured for purposes of all
stock option grants to senior managers of Employer) and which shall vest ratably on
each of the three anniversaries of the grant of such stock options; provided,
however, that in the event that (x) an insufficient number of shares is available
for grant under the Plan or (y) the Compensation Committee
otherwise determines, in its sole discretion, that an award of stock options
would not be prudent or desirable, then such amount shall be awarded in (2) a
cash amount, which amount shall be credited to Officer’s account under the terms
of the LTAIC Deferral Plan and shall have an option to invest in Employer stock.
In either case, the award issued pursuant to this Section 4(b)(ii)(B)(l) or (2)
shall have no forfeiture or clawback provisions based on Officer’s
post-employment activities (except as otherwise required by applicable law).
Notwithstanding the foregoing, Officer shall be eligible to receive an LTAIC award in
2008 (for 2007) under the terms of Sections 4(b)(i) and 4(b)(ii) (including, but not
limited to, being measured on the same basis as stock options are measured for purposes
of all stock option grants to senior managers of Employer), as if such programs were
already in place and paid generally at the same time as all other annual equity awards
are made to senior managers of Employer, provided that the portion of Officer’s LTAIC
award under Section 4(b)(ii)(A) shall be paid in the form of stock options pursuant to
the terms of the Plan and which shall vest ratably on each of the first three (3)
anniversaries of the grant of such stock options. Officer shall receive no fewer than
100,000 stock options pursuant to this 2008 LTAIC award,
2. Except as otherwise provided herein, the terms and conditions of the Original
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the date first
written.
| EMPLOYER |
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| By: | /s/ Xxxxxxx Xxxxx | |||
| Xxxxxxx Xxxxx | ||||
| Chairman and Chief
Officer IndyMac Bank, F.S.B. |
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| OFFICER |
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| By: | /s/ Xxxxxxx X. Xxxx | |||
| Xxxxxxx X. Xxxx | ||||
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