Exhibit 10.23
DIRECTOR EMERITUS AGREEMENT
Director Emeritus Agreement, dated as of August 1, 2002, by and between IndyMac
Bancorp, Inc., a Delaware Corporation (the "Company"), and Xxxxxxxxx X.
Xxxxxxxxxx (the "Retiring Director").
WITNESSETH
WHEREAS, at a special meeting of the Board of Directors of the Company
duly held on July 18, 1995, the Board adopted the resolutions authorizing the
creation of a Director Emeritus position for directors of the Company who
retired after such date; and
WHEREAS, Retiring Director has retired from the Board of Directors of
the Company, has attained the age of 72 and desires to be appointed to the
position of Director Emeritus; and
WHEREAS, the Company desires to appoint Retiring Director to the
position of Director Emeritus in order to receive valuable advisory and
consultation services from Retiring Director.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the parties hereto agree as
follows:
1. Appointment of Director Emeritus. The Company hereby appoints
Retiring Director, and Retiring Director consents to his
appointment, to the position of Director 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.
2. Duties. Retiring Director hereby covenants and agrees to make
himself available to the Company and its subsidiaries on a
consulting basis, to provide advice to the Company and its
subsidiaries on policy matters with respect to the business
and affairs of the Company and its subsidiaries as the Board
of Directors or senior management of the Company may
determine, and to attend meetings as requested by the Company
at mutually convenient times and places to provide advice and
consultation on such business matters as the Board of
Directors or senior management of the Company may determine.
Retiring Director shall be entitled to reimbursement for
reasonable travel-related expenses, for himself and his spouse
for airfare to Pasadena, Ca, two nights lodging, meals and
ground transportation, incurred in connection with one trip
annually to Pasadena, California in connection with the
performance of his duties hereunder.
3. Restrictive Covenants. Retiring Director further covenants and
agrees that during the term of this Agreement, he will
maintain strict confidentiality concerning the non-public
affairs of the Company. Retiring Director 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 Retiring Director 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.
4. Compensation. Retiring Director shall be entitled on an annual
basis to compensation in accordance with the following
schedule based on the number of years of service as a Director
of the Company and the amount of the director's fees,
exclusive of reimbursable expenses, paid to him during the
last twelve months of service as a Director of the Company
prior to his retirement.
Years of Service Monthly Compensation
---------------- --------------------
5 years 45% of the last twelve months director's fee
10 years 70% of the last twelve months director's fees
15 years 95% of the last twelve months director's fees
The amount payable to Retiring Director on an annual basis pursuant to
the above schedule shall be $76,000.00.
5. Term of Agreement. The term of this Agreement is for the life
of the Retiring Director. However, Retiring Director may
terminate this Agreement at any time upon 30 days written
notice to the Company.
6. Death Benefit. In the event of death of the Retiring Director
while serving the Company prior to the time that Retiring
Director has received five years of compensation pursuant to
this Agreement, the Company will pay to the estate of Retiring
Director, in a lump sum, a death benefit equal to a percentage
of the Retiring Director's compensation for one year as
calculated under Section 4 hereof, such percentage to be
determined in accordance with the following table:
Death Benefit as Percentage
Of Single Year's Compensation
Date of Death under Section 4_____________
------------- -----------------------------
One year or less after
date of Agreement 100%
More than one year but less than 80%
two years after date of Agreement
More than two years but less than
three years after date of Agreement 60%
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More than three years but less than
four years after date of Agreement 40%
More than four years but less than
five years after date of Agreement 20%
Five or more Years after date of
Agreement 0%
7. Independent Contractor. Retiring Director shall act and
perform at all times as an independent contractor under this
Agreement, and nothing contained in this Agreement shall be
considered or applied as to create or imply the relationship
of partners, of agency, of joint ventures or of employer and
employee between the parties hereto. Retiring Director shall
not be eligible to participate in any existing or future
employee benefit plans of the Company.
8. Severability. If any term of provision of this Agreement
shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement shall not be affected thereby, and
each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
9. Entire Agreement. It is understood and agreed that this
Agreement expresses the complete and final understanding
between the parties hereto, and that this Agreement may not be
changed or modified except by written agreement executed by
both parties hereto.
10. Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the successors of the Company and
its assigns. This Agreement shall not be assignable by
Retiring Director, and any attempted assignment shall render
this Agreement null and void.
11. Governing Law. This Agreement shall be construed, interpreted
and governed by the laws of the State of California.
12. Notices. Any notice required or permitted to be given
hereunder shall be sufficient if in writing, delivery by first
class mail or by courier, and shall be deemed to have been
duly given when sent:
If to the Company, to:
IndyMac Bank
000 X. Xxxx Xxx
Xxxxxxxx, Xx. 00000
Attention: General Counsel
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If to the Retiring Director, to:
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx Xxxxx, XX 00000
Or to such other address as either party may specify in
writing to the other party.
13. Arbitration. Any controversy or claim arising out of, or
relating to, this Agreement or the breach thereof, shall be
settled by arbitration in accordance with the rules then
obtaining of the American Arbitration Association, and
judgment upon the award rendered may be entered in any court
having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year written above.
INDYMAC BANCORP, INC.
By: ___________________________
Xxxxxxx Xxxxx
Vice Chairman, Chief Executive Officer
________________________________
Xxxxxxxxx X. Xxxxxxxxxx
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