Exhibit 10.28
RETIREMENT AGREEMENT
This RETIREMENT AGREEMENT (the "Agreement") is effective as of February
10, 2003 (the "Effective Date"), by and between IndyMac Bancorp, Inc., a
Delaware corporation (the "Company"), and Xxxxx X. Xxxx ("Executive").
In consideration of the mutual promises and covenants herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Retirement; Termination of Employment Agreement.
(a) Retirement. Executive and the Company hereby
acknowledge Executive's retirement, effective as of the Effective Date, as an
officer and director of the Company under Section 5(a) of that certain
Employment Agreement, dated as of December 30, 1998, by and between the Company
and Executive (the "Employment Agreement"), and the parties hereby waive the
termination notice provisions of Section 5(f) of the Employment Agreement.
(b) Termination of Employment Agreement. The parties
hereby terminate the Employment Agreement by mutual written consent, effective
as of the Effective Date. This Agreement is intended as a stipulated settlement
of all rights and benefits of Executive following this termination of the
Employment Agreement. Except to the extent Executive is vested with respect to
benefits under other employee benefits plans of the Company, Executive is not
entitled to any payments or other benefits from the Company other than as
provided in this Agreement.
2. Termination Bonus. As soon as practicable after the Effective
Date, the Company shall pay to Executive a one-time termination bonus of
$1,000,000, as provided in Section 4(g) of the Employment Agreement.
3. Disability Payments. Until the tenth (10th) anniversary of the
Effective Date or until Executive's death, whichever comes first (the
"Continuation Period"), the Company agrees to pay Executive, in accordance with
the Company's normal payroll policies, the sum of $420,000 per year, less any
amount of cash payments actually received by Executive under any of the
Company's disability benefit plans, disability insurance policies or tax
qualified defined benefit pension plans.
4. Continuation of Welfare Benefits. During the Continuation
Period, the Company shall make its standard health and similar welfare benefits
available to Executive and his family on the same terms and charges as such
benefits are made generally available to employees of the Company from time to
time. Provided, however, that if the Executive becomes re-employed with another
employer and is able to receive
such benefits under another employer-provided plan, the medical and other
welfare benefits described herein shall be secondary to those provided under
such other plan or plans during such applicable period of eligibility.
5. Restricted Stock. As of February 18, 2003, the Management
Development and Compensation Committee of the Board of Directors of the Company
(the "MD&C Committee") shall accelerate the vesting of all unvested shares of
restricted stock held by Executive on the Effective Date.
6. Stock Options. As of the Effective Date, the Management
Development and Compensation Committee of the Board of Directors of the Company
(the "MD&C Committee") shall accelerate the vesting of all unvested options to
purchase shares of common stock of the Company held by Executive on the
Effective Date. Any options held by Executive to purchase Company stock shall
remain exercisable for a period of twelve (12) months after the Effective Date,
at which time they will expire. In the event of Executive's death during such
twelve (12) month period following the Effective Date, the stock options may be
exercised by Executive's designated beneficiary.
7. Outstanding Business Expense Reimbursements, Computer
Equipment. As of the Effective Date, Executive hereby advises the Company that
his only outstanding expenses for which he seeks reimbursement from the Company
are air travel expenses incurred in 2002 in the amount of $32,279.55. The
Company agrees to reimburse these expenses and to reimburse future expense of
the Executive only as set forth in Section 8(b) hereof. Any subscription
services (such as journals or on-line services) of Executive currently paid for
by the Company shall be either discontinued or converted to Executive's name for
his future payment after the Effective Date. Executive shall be permitted to
retain ownership of all computer equipment previously purchased by the Company,
which he currently has in his possession at both his Florida and Nevada
residences.
8. Appointment as Chairman Emeritus; Duties; Restrictive
Covenants.
(a) Appointment as Chairman Emeritus. The Company hereby
appoints Executive, and Executive consents to his appointment, to the position
of Chairman Emeritus to serve as an advisor and consultant to the Company and
its subsidiaries on such business matters as the Board of Directors of the
Company may determine from time to time.
(b) Duties. Subject to any health limitations of
Executive, Executive hereby covenants and agrees that during the Continuation
Period he will make himself available to the Company on a consulting basis to
provide advice on policy matters with respect to the business and affairs of the
Company. Such consultation shall be provided as the Board of Directors or senior
management of the Company may reasonably request and Executive may reasonably
agree from time to time. Executive will also attend meetings as reasonably
requested by the Company at mutually convenient times and places to provide
advice and consultation on such business matters as the Board of
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Directors or senior management of the Company may reasonably request. Executive
shall be entitled to reimbursement for reasonable business and travel-related
expenses, for himself and his spouse, for first class air fare, lodging, meals
and ground transportation incurred in connection with the performance of his
duties hereunder, including expenses incurred in connection with attending the
Annual Shareholders' meeting and one additional Board of Directors' meeting per
year. For the 2003 Annual Shareholders' meeting only, the Company hereby agrees
to reimburse Executive up to $40,000, for the expense of a charter air flight
from Florida to California.
(c) Restrictive Covenants. Executive further covenants
and agrees that during the term of this Agreement, he will maintain strict
confidentiality concerning the non-public affairs of the Company. Executive will
refrain from entering into an employment or consulting arrangement with, or from
supplying any information or materials to, any direct or indirect competitor of
the Company or its subsidiaries. In the event the Executive is not certain
whether an enterprise is a direct or indirect competitor of the Company or any
of its subsidiaries, he shall promptly notify the Company's Board of Directors
of the name of such enterprise, and the Company's determination shall be binding
and conclusive.
9. General Release.
(a) Except for the rights and obligations created by this
Agreement, Executive hereby releases, acquits and forever discharges the
Company, its subsidiaries and its affiliates and all their respective
successors, assigns, directors, employees, agents, officers, trustees,
stockholders, attorneys and insurers (collectively, the "Released Parties") from
any claims, expenses, debts, demands, costs, contracts, liabilities,
obligations, actions and causes of action of every nature, whether known or
unknown, whether in law or in equity, which Executive had or has or may claim to
have by reason of any and all matters from the beginning of time to the present,
including, but not limited to, claims for wrongful termination, wrongful
demotion, breach of contract, breach of the implied covenant of good faith and
fair dealing, harassment, fraud, misrepresentation, intentional and negligent
infliction of emotional distress, reimbursement of employee expenses,
reimbursement of medical expenditures, violation of civil rights, defamation,
conspiracy, severance pay, denial of pension benefits, claims for workers'
compensation benefits, claims under the Labor Code of the State of California or
similar laws of any other jurisdiction, claims under the federal and state Wage
and Hours laws and claims for discrimination based on race, color, national
origin, gender, religion, pregnancy, marital status, sexual preference, age or
disability (including AIDS or HIV-positive status), under federal and state law,
including without limitation, claims under the Age Discrimination in Employment
Act.
(b) Executive agrees that if Executive commences, joins
in, or in any other manner attempts to assert a claim released herein against
the Released Parties, or any of them, Executive shall return to the Company all
compensation specified in Sections 2 and 3 above and shall pay all costs and
expenses, including legal fees, incurred by the Company or any other Released
Party in defending against any such claim or
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claims; provided, however, that the foregoing provision shall not apply to any
claim by Executive for unemployment insurance compensation from the State of
California.
10. Release of Unknown and Unsuspected Claims. Executive
specifically and expressly waives all rights under the provisions of Section
1542 of the Civil Code of California, or any similar provision of law in any
other jurisdiction. Section 1542 provides as follows:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
Thus, for the purposes of effecting a complete settlement of all claims
which Executive may have or claim to have against the Released Parties,
Executive waives and releases any and all claims against all Released Parties,
including claims which are unknown and unsuspected as of this time.
11. Miscellaneous.
(a) Successors. This Plan Agreement shall be binding upon
any successor of the Company, in accordance with the terms of this Agreement.
(b) Entire Agreement. This instrument contains the entire
agreement of the parties relating to the subject matter hereof, and it replaces
and supersedes any prior agreements between the parties relating to said subject
matter. No modification or amendments of this Agreement shall be valid unless
made in writing and signed by the parties hereto.
(c) Severability. If any one or more of the provisions
contained in this Agreement are invalid, illegal or unenforceable, the other
provisions of this Plan Agreement will be construed and enforced as if the
invalid, illegal or unenforceable provision had never been included.
(d) Governing Law. Except to the extent preempted by
federal law, and without regard to conflict of laws principles, the laws of the
State of California will govern this agreement in all respects, whether as to
its validity, construction, capacity, performance or otherwise.
(e) Non-Disclosure of this Agreement. Executive
understands and agrees that this Agreement and the terms hereof are
confidential, and hereby agrees not discuss the same with any other person,
including, without limitation, employees, former employees of the Company, and
members of the media, except that Executive may disclose this information to his
attorney, accountant or other professional advisor to whom disclosure must be
made in order for them to render professional services to Executive.
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(f) Parties' Full Understanding.
(i) Executive hereby expressly acknowledges that
he has been advised by the Company to consult with legal counsel before
executing this agreement. In addition, the Company has agreed to pay for
reasonable attorneys' fees in connection with such review.
(ii) Each party represents and warrants that each
party has had the opportunity to discuss this Agreement with such party's legal
and financial consultants, that such party has carefully read and understands
each provision hereof, and that such party is entering into this Agreement
voluntarily.
(g) Right of Revocation. If Executive should choose to
enter into this Agreement, he will so indicate by signing the attached copy of
this Agreement and returning it to the Company no later than twenty-one (21)
days following the date of this Agreement, which is the date on which Executive
acknowledges having received a copy of this Agreement. If Executive does so, he
will have the right for a period of up to, but not to exceed, seven (7) days
from the date he signs this Agreement to revoke it by furnishing written notice
of such revocation to the General Counsel of the Company. This Agreement will
not become effective or enforceable until the aforementioned revocation period
has expired.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
INDYMAC BANCORP, INC.
ATTEST
____________________ By: ____________________________
Secretary Title: _________________________
EXECUTIVE
________________________________
Xxxxx X. Xxxx
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REVIEW OF RETIREMENT AGREEMENT BY COUNSEL
I, Xxxxx X. Xxxx, hereby acknowledge that IndyMac Bancorp, Inc. (the "Company")
has advised me to have that certain Retirement Agreement, by and between myself
and the Company, review by counsel of my choice. In addition they have offered
to pay the reasonable expense of such review.
I hereby expressly waive the opportunity to have the Retirement Agreement
reviewed by outside counsel, and make such waiver freely and voluntarily.
_____________________ Date:______________________
Xxxxx X. Xxxx
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