AMENDED AND RESTATED EMPLOYMENT AGREEMENT BY AND BETWEEN INDYMAC BANCORP, INC. AND MICHAEL W. PERRY EFFECTIVE SEPTEMBER 18, 2006 AMENDED AND RESTATED AS OF SEPTEMBER 17, 2007
EXHIBIT 10.22
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
BY AND BETWEEN
INDYMAC BANCORP, INC.
AND
XXXXXXX X. XXXXX
EFFECTIVE SEPTEMBER 18, 2006
AMENDED AND RESTATED AS OF SEPTEMBER 17, 2007
BY AND BETWEEN
INDYMAC BANCORP, INC.
AND
XXXXXXX X. XXXXX
EFFECTIVE SEPTEMBER 18, 2006
AMENDED AND RESTATED AS OF SEPTEMBER 17, 2007
INDEX
| Page | ||||||||
| 1 | Term | 1 | ||||||
| 2. | Position Duties and Responsibilities | 1 | ||||||
| 3. | Scope of this Agreement and Outside Affiliations | 2 | ||||||
| 4. | Compensation and Benefits | 2 | ||||||
| (a) | Base Salary | 2 | ||||||
| (b) | Incentive Compensation | 2 | ||||||
| (c) | Equity Compensation | 4 | ||||||
| (d) | Deferred Compensation | 4 | ||||||
| (e) | Additional Benefits | 4 | ||||||
| (f) | Travel | 5 | ||||||
| (g) | Certain Perquisites and Business-Related Benefits | 5 | ||||||
| (h) | Future Alternative compensation Structure | 6 | ||||||
| 5. | Termination | 6 | ||||||
| (a) | Disability | 6 | ||||||
| (V) | Death | 8 | ||||||
| (c) | Cause | 8 | ||||||
| (d) | Other than For Cause of Disability | 10 | ||||||
| (e) | Good Reason | 10 | ||||||
| (f) | Voluntary Resignation | 11 | ||||||
| (g) | Change in Control | 11 | ||||||
| (h) | Notice of Termination | 12 | ||||||
| (i) | Expiration of Employment Term or Retirement | 12 | ||||||
| 6. | Certain Additional Payments by Employer | 13 | ||||||
| 7. | Reimbursement of Business Expenses | 15 | ||||||
| 8. | Indemnity | 15 | ||||||
| 9. | Miscellaneous | 16 | ||||||
| (a) | Successorship | 16 | ||||||
| (b) | Notices | 16 | ||||||
| (c) | Entire Agreement | 16 | ||||||
| (d) | Waiver | 16 | ||||||
| (e) | California Law | 16 | ||||||
| (f) | Arbitration | 16 | ||||||
| (g) | Confidentiality | 16 | ||||||
| (b) | No Solicitation | 17 | ||||||
| (i) | Cooperation | 17 | ||||||
| (i) | Consideration; Remedies of Employer | 17 | ||||||
| (k) | Reformation | 17 | ||||||
| (l) | Moral Obligation | 18 | ||||||
| (m) | Severability | 18 | ||||||
| (n) | No Obligation to Mitigate | 18 | ||||||
| (o) | Adjustment of Options | 18 | ||||||
| (p) | Legal Fees | 18 | ||||||
| (q) | Code Section 409A | 18 | ||||||
| 10. | Regulatory Authority | 19 | ||||||
| 11. | Xxxxxxxx-Xxxxx | 19 | ||||||
| Appendix A | ||||||||
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of
September 17, 2007 by and between IndyMac Bancorp, Inc. (“Employer”) and Xxxxxxx X. Xxxxx
(“Officer”).
WITNESSETH:
WHEREAS, Employer, Officer and IndyMac Bank, F.S.B. (“IndyMac Bank”) have previously entered
into that certain Amended and Restated Employment Agreement, effective as of September 18, 2006
(the “Amended Agreement”), which amended and restated that certain Amended and Restated Employment
Agreement, effective as of February 1, 2002 (the “Prior Agreement”);
WHEREAS, Employer and Officer desire to amend and restate the Prior Agreement immediately into
the form of this Agreement;
WHEREAS, Employer desires to obtain the benefit of continued services of Officer and Officer
desires to continue to render services to Employer and its affiliates, including IndyMac Bank
(collectively, the “Affiliates”); and
WHEREAS, Employer and Officer desire to set forth the terms and conditions of Officer’s
employment with Employer and its Affiliates under this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the
parties hereto agree as follows:
1. Term.
(a) Employer agrees to employ Officer and Officer agrees to serve Employer and its
Affiliates, in accordance with the terms hereof, for a term beginning on the date hereof and
ending on
December 31, 2011, unless earlier terminated in accordance with the provisions hereof (the
“Employment
Term”).
(b) On December 31, 2011, and on each of the next four (4) anniversaries thereof, this
Agreement shall automatically renew for an additional term of one (1) year from January 1 of
the next
year to December 31 of such year, unless notice of non-renewal is provided by either Employer
or Officer
at least twelve (12) months prior to the date of renewal. Unless extended thereafter by mutual
agreement,
the Employment Term shall end on December 31, 2016.
2. Position, Duties and Responsibilities. Employer and Officer hereby agree that, subject
to the provisions of this Agreement, Officer shall serve as Chief Executive Officer of
Employer.
Employer agrees that Officer shall have the authority and duties customary for his positions
in similarly
situated entities and such other duties, commensurate with his position, as assigned by the
Board of
Directors of Employer (the “Board”) from time to time. Employer agrees that Officer
may serve as Chief
Executive Officer and Chairman of IndyMac Bank but that any such appointment or election is
subject to
the approval of and any agreement with the Board of Directors of IndyMac Bank (the “IndyMac
Bank
Board”). Officer shall have such executive power and authority as shall reasonably be
required to enable
him to discharge his duties in the offices which he may hold. All compensation paid to Officer
by
Employer or any of its Affiliates shall be aggregated in determining whether Officer has
received the
-1-
benefits provided for herein, but without prejudice to the allocation of costs among the
entities to which Officer renders services hereunder.
Employer agrees that, as long as Officer serves on the Board, he shall serve as Chairman of
the Board, Employer shall cause Officer to be nominated for election to the Board.
3. Scope of This Agreement and Outside Affiliations. During the term of this Agreement,
Officer shall devote his full business time and energy, except as expressly provided below, to
the
business, affairs and interests of Employer and its Affiliates, and matters related thereto.
Officer shall
report only to the Board and, if appointed to a management position at IndyMac Bank, to the
IndyMac
Bank Board and shall perform his duties, subject to their authority. Officer agrees to serve
without
additional remuneration as the chief executive officer or director of one or more (direct or
indirect)
subsidiaries or Affiliates of Employer as the Board may from time to time reasonably request,
subject to
appropriate authorization by the Affiliate or subsidiary involved and any limitation under
applicable law,
provided that Officer shall be indemnified and covered by directors’ and officers’ liability
insurance of
Employer as provided under Section 8 hereof with regard to such service. Officer’s failure to
discharge an
order or perform a function because Officer reasonably and in good faith believes such would
violate a
law or regulation or be dishonest shall not be deemed a breach by him of his obligations or
duties
pursuant to any of the provisions of this Agreement, including without limitation pursuant to
Section 5(c)
hereof.
Officer may make and manage personal business investments of his choice and serve in any
capacity with any civic, educational or charitable organization, or any governmental entity or
trade association, without seeking or obtaining approval by the Board, provided such activities and
services do not materially interfere or conflict with the performance of his duties hereunder.
Officer may serve as a director (or on the advisory committee) of corporations or other business
enterprises with prior approval of the Management Development and Compensation Committee of the
Board (the “Compensation Committee”) which shall not be unreasonably withheld, provided
such activities or services do not materially interfere or conflict with the performance of
Officer’s duties hereunder.
4. Compensation and Benefits.
(a) Base Salary. During the Employment Term, Employer shall pay to Officer a base salary
at the annual rate of $1,000,000 (the “Base Salary”). At the sole discretion of the
Compensation
Committee, the Base Salary may be increased from time to time but shall not be reduced. Any
increased
rate shall thereafter be the rate of Base Salary hereunder.
(b) Incentive Compensation. Commencing with the 2007 fiscal year, Officer shall receive
the following incentive compensation for each fiscal year of the Employment Term:
(i) Short Term Annual Incentive Compensation. Pursuant to Employer’s
short term annual incentive plan, as in effect from time to time (which plan shall be
intended to be compliant with Section 162(m) of the Internal Revenue Code of 1986, as
amended (the “Code”)), subject to Section 4(b)(iv) below, Officer shall receive
Short Term Annual Incentive Compensation (“STAIC”) for each fiscal year of the Employment
Term. The STAIC shall be calculated utilizing a base level amount equal to one percent (1%)
of Employer’s prior fiscal year net income as reflected in the Employer’s financial
statements for the prior fiscal year (subject to adjustment as provided herein) (the “Base
Level”), which Base Level shall be multiplied by a percentage determined by the one-year
earnings per share growth (“EPS”) as follows (the “Base Level Multiplier”)
and with linear interpolation between each Base Level Multiplier (except if below
-2-
five percent (5%) or above seventeen percent (17%)), subject to this Section 4(b)(i) and
Section 4(b)(iv) below:
| EPS | Base Level Multiplier | |||
Below 5% |
0 | % | ||
5% |
25 | % | ||
10% |
50 | % | ||
13% |
75 | % | ||
15% |
100 | % | ||
Greater than or equal to 17% |
125 | % | ||
The STAIC award may be adjusted downward from zero (0) to twenty percent (20%) based on
mutually agreed upon qualitative factors including, but not limited to, succession planning,
leadership, quality of earnings, quality and effectiveness of enterprise risk management and
quality of relationship and compliance with regulatory agencies that are, in good faith,
established at the beginning of the performance period by the Compensation Committee and
subjectively evaluated by the Compensation Committee at the end of the performance period.
Notwithstanding the foregoing definition of Base Level, in the event that Employer’s net
income for a prior year was negative or, in the sole discretion of the Compensation Committee,
reflected a substantial decline from the previous year, the Compensation Committee may, in its sole
discretion, within the time period permitted by section 162(m) of the Code for setting such year’s
annual bonus goals, elect to use one percent (1%) of Employer’s current fiscal year net income (the
“Alternative Base Level”). In such event, Officer’s STAIC award for such fiscal year shall
be the greater of the amount calculated pursuant to the terms described in this Section 4(b)(i)
without regard to the prior sentence, or seventy-five percent (75%) of the Alternative Base Level.
The STAIC shall be paid in the calendar year following the calendar year to which the STAIC
relates, but no later than March 15th of such year.
(ii) Discretionary Annual Incentive Award. In the event the STAIC award
determined in accordance with Section 4(b)(i) above is less than $1,000,000, Officer shall be
eligible, in the sole discretion of the Compensation Committee, to a bonus in lieu of the
foregoing (which bonus in the aggregate shall not exceed $1,000,000) and shall be conditioned
on the determination by the Compensation Committee that Employer’s performance was
substantially better than that of key industry peers. Such discretionary bonus, if any, shall
be paid in the calendar year following the calendar year to which it relates, but no later
than March 15th of such year.
(iii) 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 (determined prior to any reduction under Section
4(b)(iv) below), which LTAIC award shall be awarded, in the discretion of the
Compensation Committee, in either (x) restricted stock under Employer’s 2002 Stock
-3-
Incentive Plan, as amended and restated or any successor plan (the “Plan”),
which award shall provide for a vesting schedule of no greater than three (3) years,
or (y) 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)(iii)(A)(y) (the “LTAIC
Deferral Plan”) and has 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
(determined prior to any reduction under Section 4(b)(iv) below), which amount
shall be awarded in the form of 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 and 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 2007
(for 2006) under the terms of Sections 4(b)(i) and 4(b)(iii) (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)(iii)(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.
(iv) Special Reduction. The annual STAIC payable to Officer pursuant to
Section 4(b)(i) above shall be reduced by ten percent (10%). Officer understands that
it is Employer’s intent to utilize such amount to help fund a scholarship program for
children of employees of Employer (the “Scholarship Program”).
(c) Equity Compensation. The terms and conditions regarding Officer’s equity award
grants made pursuant to the Prior Agreement shall continue to vest and otherwise remain in
effect with
their terms.
(d) Deferred Compensation. On January 1, 2003 (the “Credit Date”), Employer credited
Officer’s account under the IndyMac Bancorp, Inc. Deferred Compensation Plan (the
“Deferred
Compensation Plan”) with $5 million (the “Deferred Compensation Credit”). Such
amount plus any
accrued earnings thereon (the “Deferred Amount”) became fully (100%) vested on January
1, 2007. The
Deferred Amount shall become payable to Officer in accordance with the Deferred Compensation
Plan
and Officer’s distribution election thereunder; provided, however, that in the event of a
distribution
pursuant to Officer’s “separation from service” (as defined in Code Section 409A), if Officer
is a
Specified Employee (as defined in Section 9(q)) on the date of his separation from service,
the
distribution shall not be earlier than the earlier of (i) the date six (6) months following
such separation
from service or (ii) Officer’s death,
(e) Additional Benefits.
(i) Officer shall also be entitled to participate, at a level commensurate with
his position, in any stock purchase plan, pension plan, deferred compensation plan, life and
medical insurance policy, or other plans or benefits, of Employer for senior officers
generally or for
-4-
employees generally and that are not duplicative of the bonuses paid under Section 4(b) of
this Agreement, during the term of this Agreement as well as any benefits or rights
specifically provided for Officer (collectively, “Additional Benefits”); provided,
however, that Employer shall have no obligation to grant any stock options or other equity
awards to Officer except as provided in Section 4(b). Officer shall be entitled to paid
vacation in accordance with Employer’s vacation policy, but in no event less than five (5)
weeks per annum.
(ii) Employer shall also provide medical, dental and vision insurance coverage
for each of Officer’s and his spouse’s lifetime (or solely for his spouse’s lifetime in the
case of the Officer’s separation from service as a result of his death) and for any
dependents until the maximum age for a dependent allowable by Employer’s health and benefit
plans offered to all employees (“Eligible Dependents”) that, in conjunction with the
coverage available to Officer and his spouse pursuant to Medicare, if any, is substantially
similar in the aggregate (including percentage of premium cost sharing) to the coverage
provided to Officer and his spouse immediately prior to the Termination Date. The lifetime
medical, dental, and vision coverage available to Officer, his spouse and Eligible
Dependents pursuant to this Section 4(e)(ii) shall be referred to throughout this Agreement
as the “Lifetime Medical Coverage.” Employer will use its reasonable best efforts to provide
the Lifetime Medical Coverage in a manner that does not result in the inclusion of the
benefit amounts received through the Lifetime Medical Coverage from the income of Officer
and his spouse by operation of Section 105(h) of the Code. If such coverage is self-funded
and not fully insured, it is intended that Executive be deemed to have monthly taxable
income in the value of the monthly premium for such insurance. Employer’s obligations
pursuant to this Section 4(e)(ii) shall be limited to expenses incurred during Officer’s and
his spouse’s lifetime or during the dependants’ coverage period. Employer will make, or
cause the insurance company to make, any payments required under this Section 4(e)(ii) with
regard to medical benefits within 30 days after delivery of Officer’s written requests for
payment, accompanied by such evidence of expenses incurred as the Employer may reasonably
require, but in no event later than December 31 of the year following the year in which the
expense was incurred. The amount payable or reimbursable under such insurance or coverage
for any one year shall not affect the amount reimbursable in any other year. Officer’s right
to reimbursement pursuant to this Section 4(e)(ii) shall not be subject to liquidation or
exchange for another benefit. Officer, his spouse and/or Eligible Dependents shall provide
to Employer evidence of coverage under any applicable health insurance policy or Medicare
supplemental health policy.
(iii) This Agreement shall not affect the provision of any other
compensation, retirement or other benefit program or plan of Employer, except as
provided herein.
(f) Travel. In connection with business travel, Officer shall be permitted to travel first
class,
or by chartered or other private plane service where appropriate, at Employer’s expense, it
being
recognized that travel by charter or other private plane service will be necessary for
security reasons.
(g) Certain Perquisites and Business-Related Benefits:
(i) Club Memberships. Employer shall pay standard annual and monthly membership
fees and any business related charges for Officer’s participation in the California Club,
the Annandale Golf Club, and the Shady Canyon Golf Club (including, but not limited to, the
initial fee and monthly and other assessments) and such other memberships as may be approved
by the Compensation Committee from time to time (including prior to January 1, 2007, those
memberships that exist as of the date of the Amended Agreement). In addition, Employer shall
pay standard annual and monthly membership fees, travel expenses, and any business related
charges for Officer’s participation in the Young Presidents’ Organization. Employer shall
-5-
make any such payment or reimburse Officer for any such expense, as the case may be, within
30 days after receipt of written request for payment accompanied by such evidence of
payments due or expenses incurred as the Employer may reasonably require, but in no event
later that December 31 of the year following the year in which the payment became due or the
expense was incurred. The amount payable or reimbursable by the Employer under this Section
4(g)(i) in any one year shall not affect the amount payable or reimbursable in any other
year.
(ii) Car Allowance. Employer shall provide Officer with an appropriate luxury
automobile (as mutually agreed to by Officer and the Compensation Committee, but at no less
than the level of automobile provided by Employer to Officer on the Effective Date) for
Officer’s exclusive use and provide at Employer expense for car insurance, maintenance and
operating expenses. Officer shall have the right to replace the automobile every two (2)
years.
(iii) Financial Planning Services. Employer shall pay for the financial planning
and tax services of AYCO for Officer, including a full tax gross-up for any imputed income
to Officer resulting from such benefit. The annual amount that Employer shall be required to
pay for such services shall not exceed $35,000, exclusive of the tax gross-up. Employer
shall make such payment or reimburse Officer for any such expense, as the case may be,
within 30 days after receipt of written request for payment accompanied by such evidence of
payments due or expenses incurred as the Employer may reasonably require, but in no event
later that December 31 of the year following the year in which the payment became due or the
expense was incurred. The amount payable or reimbursable by the Employer under this Section
4(g)(iii) in any one year shall not affect the amount payable or reimbursable in any other
year. Any gross-up payment shall be paid to Officer no later than December 31 of the year
after the year Officer remits the applicable tax.
(iv) Life Insurance. In addition to the life insurance benefit provided by
Employer to all employees that Officer is eligible for and elects to avail, Employer shall
provide an additional portable term or universal life insurance policy on the life of
Officer, for the benefit of a beneficiary designated by Officer, with a death benefit equal
to four (4) times Officer’s Base Salary, with Officer not being required to make any payment
thereon (other than payment of any tax obligations).
(v) Long Term Disability. Employer shall provide Officer long term disability
coverage which shall provide annual benefits to Officer equal to sixty-five percent (65%) of
his Base Salary during any period that Officer is disabled, if the disability arose during
the Employment Term. Any disability payments to Officer pursuant to coverage obtained
pursuant to this Section 4(f)(vi) shall not be subject to offset by severance benefits
payable to Officer pursuant to this Agreement.
(h) Future Alternative Compensation Structure. The parties reserve the right at any time by
mutual agreement to amend this Agreement to provide for an alternative compensation structure
that they believe better reflects an identity of interest between Officer and stockholders.
5. Termination. The compensation and benefits provided for herein and the employment
of Officer by Employer shall be terminated only as provided for below in this Section 5. For
purposes of this Agreement, a termination shall be deemed to occur only upon a separation from
service, and the term “separation from service” shall have the same meaning as set forth in Code
Section 409A and the Final 409A Regulations, as defined in Section 9(q).
-6-
(a) Disability. In the event that Officer shall fail, because of illness, injury or
similar incapacity, to render for six (6) consecutive months or for shorter periods aggregating one
hundred eighty (180) or more business days in any twelve (12) month period, the material services
contemplated by this Agreement (“disability”), Officer’s full-time employment hereunder may be
terminated, by written Notice of Termination from Employer to Officer while Officer remains so
incapacitated; and thereafter, upon Officer’s separation from service:
(i) Employer shall pay Officer a single severance payment as soon as practicable
after the Termination Date, but, subject to Section 9(q), in no event later than thirty (30)
days thereafter, an amount in cash equal to two (2) times the sum of: (A) the average of the
Base Salary in effect for the two (2) years immediately preceding the Termination Date, plus
(B) an amount equal to Officer’s prior year’s Base Level STAIC; provided however, that in no
event shall the aggregate amount payable under this Section 5(a)(i) be less than $7 million,
(ii) Employer shall pay Officer an amount equal to Officer’s STAIC, pro-rated
from January 1 of the year in which the separation from service occurs through the
Termination Date, based on Employer’s actual performance for the year of separation from
service (with no discretionary factor reduction), payable, subject to Section 9(q), in the
calendar year following the calendar year in which the Termination Date occurs at such time
or times when Employer would have paid such bonus to Officer if he had continued employment
(the “Pro Rata Annual Bonus”),
(iii) Employer shall pay Officer an amount equal to Officer’s LTAIC, pro-rated
from January 1 of the year in which the separation from service occurs through the
Termination Date, based on Employer’s actual performance for the year of separation from
service, payable, subject to Section 9(q), in the calendar year following the calendar year
in which the Termination Date occurs at such time or times when Employer would have paid
such compensation to Officer if he had continued employment (the “Pro Rata Long Term
Bonus”),
(iv) Any of Officer’s outstanding unvested options and any other equity grants
shall become immediately vested, any vested options granted after the date hereof shall
remain exercisable until their full-term expiration date and any vested options granted
prior to the date hereof shall remain exercisable in accordance with the terms of the grant
and the Prior Agreement (the “Equity Treatment”).
(v) Officer, his spouse and Eligible Dependents shall be entitled to Lifetime Medical
Coverage,
(vi) All unvested amounts, including any earnings, credited to Officer’s accounts
under the Deferred Compensation Plan and the LTAIC Deferral Plan shall immediately become
vested and nonforfeitable. The amounts in Officer’s accounts shall be payable to Officer in
accordance with Officer’s distribution election under the Deferred Compensation Plan and the
LTAIC Deferral Plan, subject to Section 9(q) (the “Deferred Compensation
Treatment”),
(vii) To the full extent permitted by law, so long as Employer (or a successor)
maintains directors’ and officers’ liability insurance for its executives or directors,
Employer shall continue to provide Officer following the Termination Date with directors’
and officers’ liability insurance insuring Officer against insurable events which occur or
have occurred while Officer was a director or officer of Employer or an Affiliate or a
fiduciary of an employee benefit plan of any of the foregoing, such insurance to have policy
limits aggregating not less than the amount in effect immediately prior to the Termination
Date or, if higher, that provided to other officers or directors of Employer. In addition,
Officer’s rights of indemnification hereunder or otherwise
-7-
with regard to service on behalf of Employer or an Affiliate or a fiduciary of an employee
benefit plan of any of the foregoing prior to such termination (“Rights of
Indemnification”) shall continue (the “Coverage Protection”), and
(viii) Officer shall be entitled to his accrued rights, including but not limited
to earned but unpaid Base Salary, accrued but unused vacations and earned but unpaid STAIC
or LTAIC for any prior completed fiscal year and any earned but unpaid benefits under any
plan or program of Employer, the STAIC and LTAIC being payable in the calendar year in which
the Termination Date occurs at such time or times when Employer would have paid such STAIC
or LTAIC compensation., as the case may be, to Officer had he continued employment, but no
later than March 15th of such year, and the remaining accrued rights being paid within 30
days following the Termination Date (“Accrued Amounts”).
The determination of Disability shall be made only after Officer has failed to render services for
the above stated time periods and shall be made only after thirty (30) days notice to Officer
(which may run concurrently with the Notice of Termination). Prior to a separation from service as
a result of Disability, Officer shall continue to receive his full compensation and benefits during
any period of incapacity.
(b) Death. In the event of Officer’s death during the term of this Agreement, the Officer’s
estate shall be entitled to the following, which for purposes of this Section 5(b) shall not
be subject to
Section 9(q):
(i) The Pro Rata Annual Bonus,
(ii) The Pro Rata Long Term Bonus,
(iii) The Deferred Compensation Treatment,
(iv) The Equity Treatment,
(v) The Lifetime Medical Coverage (limited to Officer’s spouse and Eligible
Dependents),
(vi) The Coverage Protection, and
(vii) The Accrued Amounts.
(c) Cause. Employer may terminate Officer’s employment under this Agreement for
“Cause.” A termination for Cause is a separation from service by reason of (i) a material
breach of this
Agreement by Officer (other than as a result of incapacity due to physical or mental illness)
that is
committed in bad faith or without reasonable belief that such breach is in the best interests
of Employer
and which, for any breach that is remediable, or can be cured going forward, is not remedied
or cured
within a reasonable period of time after receipt of written notice from Employer specifying
such breach,
or (ii) Officer’s conviction by a court of competent jurisdiction of a felony involving acts
of fraud,
embezzlement, dishonesty or moral turpitude, or (iii) entry of a final non-appealable order
duly issued by
any federal or state regulatory agency having jurisdiction in the matter removing Officer from
office of
IndyMac Bank or permanently prohibiting him from participating in a material portion of the
affairs of
IndyMac Bank, provided that the order resulted from act(s) of Officer which were committed in
bad
faith and without reasonable belief that such act(s) were in the best interests of Employer.
-8-
Notwithstanding the foregoing, Officer’s employment shall not be deemed to have been
terminated for Cause unless and until there have been delivered to Officer a copy of a resolution
duly adopted by the affirmative vote of not less than two-thirds of the non-employee directors of
the Board (the “Outside Directors”) (after reasonable notice to Officer and an opportunity
for Officer, together with Officer’s counsel, to be heard before the Outside Directors), finding
that in the Outside Directors’ good faith opinion Officer was guilty of conduct set forth above in
this Section 5(c) and specifying the particulars thereof in reasonable detail.
If Officer shall be (A) convicted of a felony of a type set forth above or (B) shall be
suspended and/or temporarily prohibited from participating in the conduct of IndyMac Bank’s affairs
by a notice served under Section 8(e)(3) or (g)(l) of the Federal Deposit Insurance Act (12 U.S.C.
1818(e)(3) and (g)(l)) by any federal or state regulatory authority having jurisdiction in the
matter, by the affirmative vote of two-thirds of the Outside Directors (after reasonable notice to
Officer and an opportunity for Officer, together with Officer’s counsel, to be heard before the
Outside Directors), provided that the provisions of the next paragraph have been complied with, the
Outside Directors may suspend Officer from some or all of his duties and authority while such
suspension or prohibition or conviction is in effect and, if they elect to do so and reasonably
anticipate that making such payments will violate applicable law, shall also during such period
suspend Officer’s right to some or, if no duties are to be performed, all of Officer’s Base Salary,
STAIC and LTAIC accruing during such suspension period to the extent they reasonably anticipate
making such payment or portion of such payment, as the case may be, will violate applicable law;
provided, further that that if the conviction is overturned on appeal or if the charges resulting
in such suspension or prohibition are finally dismissed or if a final judgment on the merits of
such charges is issued in favor of Officer, then Officer shall be reinstated in full with back
amounts for the suspension period plus accrued interest at the rate then payable on judgments.
Notwithstanding the foregoing, any payment of back amounts shall be made at the earliest date at
which Employer reasonably anticipates that making such payment will not cause a violation of
applicable law.
With regard to clause (B) above, (1) Employer shall use its best efforts to oppose and defend
against any such notice of charges as to which there are reasonable defenses and to permit Officer
to participate in such effort by counsel of his selection fully paid by Employer; (2) in the event
the notice of charges is dismissed or otherwise resolved in a manner that will permit Employer to
resume its obligations to pay compensation hereunder, Employer shall promptly make such payment
hereunder; and (3) during the period of suspension, the vested rights of the contracting parties
shall not be affected except to the extent precluded by such notice.
During the period that Employer’s obligations under Sections 4(a), 4(b), 4(d), 4(e) and 4(g)
hereof are suspended, Officer shall continue to be entitled to receive Additional Benefits under
Section 4(e) until the conviction of the felony has become final and non-appealable. When the
conviction of the felony has become final and non-appealable, all of Employer’s obligations
hereunder shall terminate; provided, however, that the termination of Officer’s employment pursuant
to this Section 5(c) shall not affect Officer’s entitlement to all benefits in which he has become
vested or which are otherwise payable in respect of periods ending prior to his Termination Date.
To the full extent permitted by law, so long as Employer (or a successor) maintains directors’ and
officers’ liability insurance for its executives or directors, Employer shall continue to provide
Officer following the Termination Date with directors’ and officers’ liability insurance insuring
Officer against insurable events which occur or have occurred while Officer was a director or
officer of Employer or an Affiliate or a fiduciary of an employee benefit plan of any of the
foregoing, such insurance to have policy limits aggregating not less than the amount in effect
immediately prior to the Termination Date or, if higher, that provided to other officers or
directors of Employer. In addition, Officer’s Rights of Indemnification shall continue. Officer
shall also be entitled to his Accrued Amounts.
-9-
Upon termination for Cause, Officer is not entitled to any severance or bonus and all options
shall expire on the Termination Date. Anything herein to the contrary notwithstanding, termination
for Cause shall not include termination by reason of Officer’s job performance or a job performance
rating given to Officer for his job performance or the financial performance of Employer or any
affiliated company.
(d) Other Than For Cause or Disability (not in connection with a Change in Control). If
during the term of this Agreement, Officer’s Employer shall cause Officer to have a separation from
service other than for Cause or Disability (other than in connection with a Change in Control as
provided in Section 5(g)), then;
(i) Employer shall pay Officer in a single severance payment as soon as
practicable after the Termination Date, but, subject to Section 9(q), in no event later than
thirty (30) days thereafter, an amount in cash equal to two and one-half (2.5) times the sum
of: (A) the average Base Salary in effect for the two years immediately preceding the
Termination Date and (B) an amount equal to Officer’s prior year’s Base Level STAIC;
provided however, that in no event shall the aggregate amount payable under this Section
5(d)(i) be less than $7 million,
(ii) Employer shall pay Officer the Pro Rata Annual Bonus,
(iii) Employer shall pay Officer the Pro Rata Long Term Bonus,
(iv) Officer shall be entitled to the Equity Treatment,
(v) Officer shall be entitled to the Deferred Compensation Treatment,
(vi) Officer, Officer’s spouse and Eligible Dependents shall be entitled to
the Lifetime Medical Coverage,
(vii) Officer shall be entitled to the Protection
Coverage, and
(viii) Officer shall be entitled to his
Accrued Amounts,
(e) Good Reason. Officer may terminate Officer’s employment at any time for “Good
Reason.” “Good Reason” means that any one or more of the following have occurred without
Officer’s
written consent (other than as a result of Officer’s Disability or termination of Officer’s
employment for
Cause) which is not cured by Employer within thirty (30) days after written notice thereof is
given to
Employer by Officer:
(i) Other than temporarily as a result of Officer’s suspension as provided in
Section 5(c), any diminution in Officer’s then titles or positions, including with IndyMac
Bank, or any material diminution in Officer’s then powers, reporting requirements, duties or
responsibilities, including with IndyMac Bank,
(ii) Shareholders of Employer do not elect Officer to the Board or Officer is
not elected to the IndyMac Bank Board or Officer is removed from the Board or the IndyMac
Bank Board,
(iii) Officer is not re-elected as Chairman of the Board and of the IndyMac Bank
Board,
-10-
(iv) Officer is required to relocate place of employment to a location which is
more than fifty (50) miles from IndyMac Bank’s current headquarters,
(v) Officer resigning at the request of the majority of the Board for Officer
to resign,
(vi) Employer gives to Officer a notice of non-renewal pursuant to
Section l(b), or
(vii) Any material breach by Employer of the terms of this
Agreement.
If during the term of this Agreement, Officer is separated from service on account
of Officer’s resignation for Good Reason (other than in connection with a Change in
Control as provided in Section 5(g)), Officer shall receive the payments and benefits
described in Section 5(d).
(f) Voluntary Resignation (other than Retirement or Expiration of the Employment
Term). If during the term of this Agreement, Officer shall resign other than for Good Reason
or pursuant
to Retirement, then upon such separation from service:
(i) All of his rights to payment or benefits hereunder shall immediately
terminate; provided, however, that the termination of Officer’s employment pursuant to this
Section 5(f) shall not affect Officer’s entitlement to all benefits in which he has become
vested or which are otherwise payable in respect of periods ending prior to his termination
of employment,
(ii) Any unvested options shall expire immediately, and
(A) Any vested stock options or other equity grants made to Officer after the
Effective Date of the Prior Agreement shall remain exercisable until the
earlier of three
(3) months following the Termination Date or their full-term expiration, and
(B) All vested options granted to Officer pursuant to the Prior Agreement
shall remain exercisable until the earlier of twelve (12) months following the
Termination
Date or their full-term expiration,
(iii) Officer shall be entitled to the Protection
Coverage, and
(iv) Officer shall be entitled to his
Accrued Amounts.
(g) Change in Control. During the term of this Agreement, if within two (2) years after a
Change in Control Officer has a separation from service (x) by Employer other than for Cause
or
Disability or (y) by Officer for Good Reason, then:
(i) Employer shall pay Officer in a single severance payment as soon as
practicable after the Termination Date, but, subject to Section 9(q), in no event later than
thirty (30) days thereafter, an amount in cash equal to three (3) times the sum of (A) the
average Base Salary in effect for the two (2) years immediately preceding separation from
service and (B) an amount equal to Officer’s prior year’s Base Level STAIC; provided
however, that in no event shall the aggregate amount payable under this Section 5(g)(i) be
less than $11 million,
(ii) Officer shall be entitled to the Pro Rata Annual Bonus, which for purposes
of this Section 5(g) shall be calculated based on the greatest of (A) Employer’s actual
performance, (B) the prior year’s Base Level, or (C) the current year’s Base Level,
-11-
(iii) Officer shall be entitled to the Pro Rata Long Term Bonus, which for
purposes of this Section 5(g) shall be calculated based on the greatest of (A) Employer’s
actual performance, (B) the prior year’s Base Level, or (C) the current year’s Base Level,
(iv) Officer shall be entitled to the Equity Treatment,
(v) Officer shall be entitled to the Deferred Compensation Treatment,
(vi) Officer, Officer’s spouse and Eligible Dependents shall be entitled to
the Lifetime Medical Coverage,
(vii) Officer shall be entitled to the Protection
Coverage, and
(viii) Officer shall be entitled to his
Accrued Amounts.
Notwithstanding anything contained herein, if a Change in Control occurs and Officer
has a separation from service other than for Cause or Disability or a Good Reason event
occurs prior to the Change in Control, and if such separation from service or event was at
the request, suggestion or initiative of a third party who has taken steps reasonably
calculated to effect the Change in Control, then Officer upon occurrence of the Change in
Control shall be entitled to receive the payments and benefits set forth in this Section
5(g), in lieu of the payments and benefits set forth in Section 5(d).
(h) Notice of Termination. Any purported termination by Employer or by Officer shall be
communicated by a written Notice of Termination to the other party hereto which indicates the
specific termination provision in this Agreement, if any, relied upon and which sets forth in
reasonable detail the facts and circumstances, if any, claimed to provide a basis for termination
of Officer’s employment under the provision so indicated. For purposes of this Agreement, no such
purported termination shall be effective without such Notice of Termination, The “Termination Date”
shall mean the date of termination or separation from service, as the case may be, which shall be
specified in the Notice of Termination, and shall be no less than thirty (30) or more than sixty
(60) days from the date of the Notice of Termination.
(i) Expiration of Employment Term or Retirement. At the Officer’s separation from
service following the expiration of the Employment Term, or upon separation from service due
to Retirement as defined in Section 5(j), then:
(i) Officer shall be entitled to the Pro Rata Annual Bonus,
(ii) Officer shall be entitled to the Pro Rata Long Term Bonus,
(iii) Officer shall be entitled to the Equity Treatment,
(iv) Officer shall be entitled to the Deferred Compensation Treatment,
(v) Officer, Officer’s spouse and Eligible Dependents shall be entitled to
the
Lifetime Medical Coverage,
(vi) Officer shall be entitled to the Protection
Coverage, and
(vii) Officer shall be entitled to his
Accrued Amounts.
-12-
(j) Retirement. Officer may terminate employment and may incur a separation from
service for reason of Retirement at any time after satisfying the conditions for Retirement set
forth below and shall be entitled to the compensation and benefits described in Section 5(i) above.
For purposes of this Agreement, “Retirement” shall mean Officer’s retirement or resignation from
the Company: (i)(l) if Officer is less than 55 years of age, with at least 75 points or (2) if
Officer is 55 years of age or older, with at least 65 points, and (ii) Officer has at least five
(5) consecutive years of employment with Employer. Officer shall receive one (1) point for every
consecutive year of employment with Employer and one (1) point for every year of age. Based upon
Officer’s age and employment start date of January 4, 1993, Officer would be eligible for
Retirement in 2015. This definition of Retirement is the same definition as currently utilized in
the Employer’s 2002 Stock Incentive Plan.
6. Certain Additional Payments by Employer. Anything in this Agreement to the contrary
notwithstanding, if it shall be determined that any payment or distribution to Officer or for
Officer’s benefit (whether paid or payable or distributed or distributable) pursuant to the terms
of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan,
program or arrangement, including without limitation any stock option, stock appreciation right or
similar right, or the lapse or termination of any restriction on or the vesting or exercisability
of any of the foregoing (the “Payments”) would be subject to the excise tax imposed by
section 4999 of the Code by reason of being “contingent on a change in the ownership or control” of
Employer, within the meaning of Section 280G of the Code or to any similar tax imposed by state or
local law, or any interest or penalties with respect to such excise tax (such tax or taxes,
together with any such interest or penalties, are collectively referred to as the “Excise
Tax”), then Officer shall be entitled to receive from Employer an additional payment (the
“Gross-Up Payment”) in an amount such that the net amount of the Payments and the Gross-Up Payment
retained by Officer after the calculation and deduction of all Excise Taxes (including any interest
or penalties imposed with respect to such taxes) on the payment and all federal, state and local
income tax, employment tax and Excise Tax (including any interest or penalties imposed with respect
to such taxes) on the Gross-Up Payment provided for in this Section 6, and taking into account any
lost or reduced tax deductions on account of the Gross-Up Payment, shall be equal to the Payments;
(a) All determinations required to be made under this Section 6, including whether and when
the Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptions to be
utilized in arriving at such determinations shall be made by the Accountants (as defined below)
which shall provide Officer and Employer with detailed supporting calculations with respect to such
Gross-Up Payment within fifteen (15) business days of the receipt of notice from Officer or
Employer that Officer has received or will receive a Payment. For purposes of making the
determinations and calculations required herein, the Accountants may make reasonable assumptions
and approximations concerning applicable taxes and may rely on reasonable, good faith
interpretations concerning the application of Section 280G and 4999 of the Code, provided that the
Accountant’s determinations must be made on the basis of “substantial authority” (within the
meaning of Section 6662 of the Code). For the purposes of this Section 6, the “Accountants” shall
mean Employer’s independent certified public accountants serving immediately prior to the Change in
Control. In the event that the Accountants are also serving as accountant or auditor for the
individual, entity or group effecting the Change in Control, Officer shall appoint another
nationally recognized public accounting firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accountants hereunder). All fees and expenses of
the Accountants shall be borne solely by Employer.
(b) For the purposes of determining whether any of the Payments will be subject to the Excise
Tax and the amount of such Excise Tax, such Payments will be treated as “parachute payments” within
the meaning of section 280G of the Code, and all “parachute payments” in excess of the “base
amount”(as defined under section 280G(b)(3) of the Code) shall be treated as subject to the Excise
Tax, unless and except to the extent that in the opinion of the Accountants such Payments (in whole
or in part)
-13-
either do not constitute “parachute payments” or represent reasonable compensation for services
actually rendered (within the meaning of section 280G(b)(4) of the Code) in excess of the “base
amount,” or such “parachute payments” are otherwise not subject to such Excise Tax. For purposes of
determining the amount of the Gross-Up Payment Officer shall be deemed to pay Federal income taxes
at the highest applicable marginal rate of Federal income taxation for the calendar year in which
the Gross-Up Payment is to be made and to pay any applicable state and local income taxes at the
highest applicable marginal rate of taxation for the calendar year in which the Gross-Up Payment is
to be made, net of the maximum reduction in Federal income taxes which could be obtained from the
deduction of such state or local taxes if paid in such year (determined without regard to
limitations on deductions based upon the amount of Officer’s adjusted gross income); and to have
otherwise allowable deductions for Federal, state and local income tax purposes at least equal to
those disallowed because of the inclusion of the Gross-Up Payment in Officer’s adjusted gross
income. To the extent practicable, any Gross-Up Payment with respect to any Payment shall be paid
by Employer at the time Officer is entitled to receive the Payments and in no event will any
Gross-Up Payment be paid later than five days after the receipt by Officer of the Accountant’s
determination. Any determination by the Accountants shall be binding upon Employer and Officer.
(c) As a result of uncertainty in the application of section 4999 of the Code at the time of
the initial determination by the Accountants hereunder, it is possible that the Gross-Up Payment
made will have been an amount less than Employer should have paid pursuant to this Section 6 (the
“Underpayment”). In the event that Employer exhausts its remedies pursuant to Section 6(e) and
Officer is required to make a payment of any Excise Tax, the Underpayment shall be promptly paid by
Employer to or for Officer’s benefit, but no later than December 31 of the year after the year in
which Officer remits the Excise Tax.
(d) Officer and Employer shall each provide the Accountants access to and copies of any books,
records and documents in the possession of Employer or Officer, as the case may be, reasonably
requested by the Accountants, and otherwise cooperate with the Accountants in connection with the
preparation and issuance of the determination contemplated by this Section 6.
(e) Officer shall notify Employer in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by Employer of the Gross-Up Payment. Such
notification shall be given as soon as practicable after Officer is informed in writing of such
claim and shall apprise Employer of the nature of such claim and the date on which such claim is
requested to be paid. Officer shall not pay such claim prior to the expiration of the 30-day period
following the date on which Officer give such notice to Employer (or such shorter period ending on
the date that any payment of taxes, interest and/or penalties with respect to such claim is due).
If Employer notifies Officer in writing prior to the expiration of such period that it desires to
contest such claim, Officer shall:
(i) give Employer any information reasonably requested by Employer relating to
such claim;
(ii) take such action in connection with contesting such claim as Employer shall
reasonably request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably selected by
Employer;
(iii) cooperate with Employer in good faith in order to effectively contest such
claim; and
(iv) permit Employer to participate in any proceedings relating to such claims;
provided, however, that Employer shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such contest and
shall indemnify
-14-
Officer for and hold Officer harmless from, on an after-tax basis, any Excise Tax or income
tax (including interest and penalties with respect thereto) imposed as a result of such
representation and payment of all related costs and expenses. Employer will make any
payments required under this Section 6(e)(iv) as provided above, or if not so provided,
within 30 days after delivery of Officer’s written requests for payment, accompanied by such
evidence of expenses incurred as the Employer may reasonably require, but in any event all
payments will be made no later than December 31 of the year following the year in which the
expense was incurred or the tax was remitted, as the case may be, The amount reimbursable
for any one year shall not affect the amount reimbursable in any other year, and Officer’s
right to reimbursement pursuant to this Section 6(e)(iv) shall not be subject to liquidation
or exchange for another benefit. Without limiting the foregoing provisions of this Section
6, Employer shall control all proceedings taken in connection with such contest and, at its
sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings
and conferences with the taxing authority in respect of such claim and may, at its sole
option, either direct Officer to pay the tax claimed and xxx for a refund or contest the
claim in any permissible manner, and Officer agree to prosecute such contest to a
determination before any administrative tribunal, in a court of initial jurisdiction and in
one or more appellate courts, as Employer shall determine; provided, however, that if
Employer directs Officer to pay such claim and xxx for a refund, Employer shall advance the
amount of such payment to Officer, on an interest-free basis, and shall indemnify Officer
for and hold Officer harmless from, on an after-tax basis, any Excise Tax or income tax
(including interest or penalties with respect thereto) imposed with respect to such advance
or with respect to any imputed income with respect to such advance (including as a result of
any forgiveness by Employer of such advance); provided, further that any extension of the
statute of limitations relating to the payment of taxes for the taxable year of Officer with
respect to which such contested amount is claimed to be due is limited solely to such
contested amount. Furthermore, Employer’s control of the contest shall be limited to issues
with respect to which a Gross-Up Payment would be payable hereunder and Officer shall be
entitled to settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
(f) Nothing in this Section 6 is intended to violate the Xxxxxxxx-Xxxxx Act of 2002 and to the
extent that any advance or repayment obligation hereunder would so, such obligation shall be
modified so as to make the advance a nonrefundable payment to Officer and the repayment obligation
null and void to the extent required by such Act.
These rights shall be deemed fully vested rights, not subject to suspension or forfeiture and
shall survive any termination of employment.
7. Reimbursement of Business Expenses. During the term of this Agreement, Employer shall
reimburse Officer promptly for all reasonable and appropriate business expenditures to the extent
that such expenditures are substantiated by Officer as required by the Internal Revenue Service and
rules and policies of Employer, Employer will make any payments required under this Section 7
within 30 days after delivery of Officer’s written requests for payment, accompanied by such
evidence of expenses incurred as the Employer may reasonably require, but in no event later than
December 31 of the year following the year in which the expense was incurred. The amount
reimbursable for any one year shall not affect the amount reimbursable in any other year, and
Officer’s right to reimbursement pursuant to this Section 7 shall not be subject to liquidation or
exchange for another benefit.
8. Indemnity. To the fullest extent permitted by applicable law, the Certificate of
Incorporation and the By-Laws of Employer (as from time to time in effect) and any indemnity
agreements entered into from time to time between Employer and Officer, Employer shall
indemnify Officer and hold him harmless for actions or inactions as an Officer or Director of
Employer or any
-15-
Affiliate or as a fiduciary of any employee benefit plan of any of the foregoing and shall maintain
coverage for him under liability insurance policies of a minimum amount of $80 million, or such
higher amount as provided for any other officers or directors of Employer. This provision shall in
all events survive any termination of this Agreement,
9. Miscellaneous.
(a) Successorship. This Agreement shall inure to the benefit of and shall be binding upon
Employer, its successors and assigns, but without the prior written consent of Officer, this
Agreement may not be assigned other than in connection with a merger or sale of all or
substantially all the assets of Employer or similar transaction to or with a company with a larger
net worth, higher credit rating and greater profit than Employer. The failure of any successor to
or assignee of Employer’s business and/or assets in such transaction to expressly assume all
obligations of Employer hereunder in a writing promptly delivered to Officer shall be deemed a
material breach of this Agreement by Employer.
(b) Notices. Any notices provided for in this Agreement shall be sent to Employer at its
corporate headquarters, Attention: Corporate Counsel/Secretary, with a copy to the Chairman of the
Compensation Committee at the same address, or to such other address as Employer may from time to
time in writing designate, and to Officer at such address as he may from time to time in writing
designate (or his business address of record in the absence of such designation). All notices shall
be deemed to have been given two (2) business days after they have been deposited as certified
mail, return receipt requested, postage paid and properly addressed to the designated address of
the party to receive the notices. Notices may be delivered personally or by overnight service.
(c) 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 (except to the extent specifically provided herein); provided,
however, that the parties hereby expressly acknowledge that the parties have executed IndyMac
Bank’s standard Mutual Agreement to Arbitrate Claims which is not replaced or superseded by this
Agreement; provided, farther that this Agreement does not supersede any outstanding equity grants
or awards or existing rights under any plan or program except as specifically provided herein. No
modifications or amendments of this Agreement shall be valid unless made in writing and signed by
the parties hereto.
(d) Waiver. The waiver of the breach of any term or of any condition of this Agreement
shall not be deemed to constitute the waiver of any other breach of the same or any other term
or condition.
(e) California Law. This Agreement shall be construed and interpreted in accordance with the
laws of California without reference to principles of conflict of laws.
(f) Arbitration. Any disagreement, dispute, controversy or claim arising out of or relating to
this Agreement or the interpretation of this Agreement or arrangements relating to this Agreement
or contemplated in this Agreement shall be settled by arbitration in accordance with the terms of
IndyMac Bank’s Mutual Agreement to Arbitrate Claims, as executed by Officer and IndyMac Bank on the
date hereof.
(g) Confidentiality. Officer agrees that he will not divulge or otherwise disclose, directly
or indirectly, any trade secret or other confidential information concerning the business or
policies of Employer or any of its Affiliates which he may have learned as a result of his
employment during the term of this Agreement or prior thereto as an employee, officer or director
of or consultant to Employer or any of its Affiliates, except to the extent such use or disclosure
is: (i) decided in good faith by Officer to
-16-
be necessary or desirable to the performance of Officer’s duties, (ii) required by applicable law
or in response to an inquiry from a governmental or regulatory authority, (iii) lawfully obtainable
from other sources, or (iv) authorized by Employer or IndyMac Bank. The provisions of this
subsection shall survive the expiration, suspension or termination, for any reason, of this
Agreement.
(h) No Solicitation. Officer agrees that during employment and for a period of one (1)
year following an early termination of this Agreement, pursuant to the terms described in Section
5(a), 5(c), (d), (e), (f), (g), (i) or (j) hereof, Officer shall not: (i) solicit, or cause to be
solicited, any customers of Employer or IndyMac Bank or their subsidiaries if it is for the
purposes of promoting or selling any products or services competitive with those of Employer or
IndyMac Bank, (ii) solicit business from, or perform services for, any company or other business
entity which at any time during the two (2) year period immediately preceding Officer’s termination
of employment with Employer was a customer of Employer, IndyMac Bank or their subsidiaries, or
(iii) solicit for employment, offer, or cause to be offered, employment, either on a full time,
part time, or consulting basis, to any person who was employed by Employer or its Affiliates on the
date Officer’s employment terminated, unless Officer shall have received the prior written consent
of Employer or IndyMac Bank, such person has ceased for six (6) months to be employed by Employer
or its Affiliates or Officer was not involved, directly or indirectly, in the termination of such
person’s employment with Employer or its Affiliates. The foregoing clauses (i) through (iii) shall
be violated only by the personal solicitation or personally directed and targeted solicitation by
Officer and not by (A) general marketing or solicitation, (B) solicitation by other employees of
entities employing Officer of companies, other business entities or individuals who are not
specifically identified by Officer, or (C) the providing of services by Officer’s new employer to
companies or other business entities not so solicited by Officer.
(i) Cooperation. Upon the receipt of reasonable notice from Employer (including
outside counsel), Officer agrees that while employed by Employer and thereafter, Officer will
reasonably provide information and reasonable assistance to Employer, its Affiliates and their
respective representatives in defense of any claims that may be made against Employer or its
Affiliates, to the extent that such claims may relate to the period of Officer’s employment with
Employer (or any predecessor), provided that Officer shall need not cooperate to the extent his
counsel, in good faith, advises that Officer’s interests may differ from those of Employer.
Furthermore, Employer shall reimburse all reasonable expenses incurred by Officer, including, but
not limited to, those for separate counsel.
(j) Consideration; Remedies Of Employer. The consideration for Officer’s covenants set
forth in Sections 9(g), (h) and (i), the sufficiency of which is hereby acknowledged, is Employer’s
agreement to continue to employ Officer and provide compensation and benefits pursuant to this
Agreement, including but not limited to Section 5(d). Officer acknowledges and agrees that
Employer’s remedies at law for a breach or threatened breach of any of the provisions of this
Section would be inadequate and, in recognition of this fact, Officer agrees that, in the event of
such a breach or threatened breach, in addition to any remedies at law, Employer, without posting
any bond, shall be entitled to seek equitable relief in the form of specific performance, a
temporary restraining order, a temporary or permanent injunction or any other equitable remedy
which may then be available.
(k) Reformation. The provisions of Sections 9(g), (h) and (i) are intended to restrict
Officer only to the extent permitted by law in the jurisdiction where Officer is then a resident.
To the extent any of such provisions would otherwise be determined invalid or unenforceable by a
Court of competent jurisdiction, such Court shall exercise its discretion in reforming the
provisions of this Section to the end that Officer shall be subject to reasonable provisions that
are enforceable by Employer under the laws of the jurisdiction where Officer is then a resident. If
the laws of the state where the Officer is then a resident completely prohibit any form of the
foregoing covenants, then Employer and Officer understand and agree that the foregoing covenants
are of no effect.
-17-
(l) Moral Obligation. The parties recognize that a non-competition provision would be
desirable and equitable in this Agreement, but that one cannot be included because of applicable
law. The parties further recognize that, notwithstanding the foregoing and legal unenforceability
of such a provision, Officer should and does have a moral and ethical obligation to Employer, its
shareholders and its employees not to compete with Employer within one (1) year after any
resignation from his position.
(m) Severability. If any provision of this Agreement is held invalid or unenforceable,
the remainder of this Agreement shall nevertheless remain in full force and effect, and if any
provision is held invalid or unenforceable with respect to particular circumstances, it shall
nevertheless remain in full force and effect in all other circumstance.
(n) No Obligation to Mitigate. Officer shall not be required to mitigate the amount of
any payment provided for in this Agreement by seeking other employment or otherwise and no payment
hereunder shall be offset or reduced by the amount of any compensation or benefits provided to
Officer in any subsequent employment except as expressly otherwise provided by Section 5.
Employer’s obligation to make any payment provided for in this Agreement shall not be subject to
set-off, counterclaim or recoupment.
(o) Adjustment of Options. The number of shares of common stock subject to the stock
options granted to Officer pursuant to the Prior Agreement shall be equitably adjusted by the
Committee pursuant to Section 6 of the Plan in the event of the occurrence of any of the events
described therein.
(p) Legal Fees. Employer shall promptly (and in any event prior to March 15, 2008) pay
Officer’s reasonable legal fees and costs associated with amending this Agreement, and to the
extent such payment is taxed to Officer, Employer shall provide Officer a full tax gross-up for any
imputed income to Officer resulting from such payment. Any such gross-up payment shall be paid to
Officer no later than December 31 of the year after the year Officer remits the applicable tax.
(q) Code Section 409 A. Notwithstanding anything in this Agreement to the contrary, if
any amount or benefit specified herein as “subject to Section 9(q)” would be payable or
distributable under this Agreement by reason of Officer’s separation from service at a time at
which he is a Specified Employee (as defined below), then, subject to any permissible acceleration
of payment by Employer under Treas. Reg. Section 1.409A-3(j)(4)(ii) (domestic relations order),
(j)(4)(iii) (conflicts of interest), or (j)(4)(vi) (payment of employment taxes):
(a) if the payment or distribution is payable in a lump sum, Officer’s right to receive
payment or distribution of such non-exempt deferred compensation will be delayed until the earlier
of Officer’s death or the first day of the seventh month following Officer separation from service;
and
(b) if the payment or distribution is payable over time, the amount of such non-exempt
deferred compensation that would otherwise be payable during the six-month period immediately
following Officer’s separation from service will be accumulated and Officer’s right to receive
payment or distribution of such accumulated amount will be delayed until the earlier of Officer’s
death or the first day of the seventh month following Officer’s separation from service, whereupon
the accumulated amount will be paid or distributed to Officer and the normal payment or
distribution schedule for any remaining payments or distributions will resume.
For purposes of this Agreement, the term “Specified Employee” has the meaning given such term
in Code Section 409A and the final regulations thereunder (“Final 409A Regulations”), in accordance
with rules adopted by the Board of Directors or a committee thereof, which shall be applied
consistently
-18-
with respect to all nonqualified deferred compensation arrangements of Employer, including
this Agreement, as to the determination of Specified Employees.
If any provision of this Agreement (or of any award of compensation, including equity
compensation or benefits) would cause Officer to incur any additional tax or interest under Code
Section 409A or the Final 409A Regulations, Employer shall, after consulting with Officer, amend
such provision to comply with Code Section 409A, provided that Employer agrees to maintain, to the
maximum extent practicable, the original intent and economic benefit Officer of the applicable
provision without violating the provisions of Code Section 409A. Employer shall indemnify and hold
Officer harmless, on an aftertax basis, for any additional tax (including interest and penalties
with respect thereto) that may be imposed on Officer by Code Section 409A. Any such gross-up
payment shall be paid to Officer no later than December 31 of the year after the year Officer
remits the applicable tax.
10. Regulatory Authority. Any payments made to Officer pursuant to this Agreement or otherwise
are subject to and conditioned upon their not being in violation of 12 U.S.C. Section 1828(k) and
FDIC regulation 12 C.F.R. Part 359, Golden Parachutes and Indemnification Payments, as applicable.
11. Xxxxxxxx-Xxxxx. Officer acknowledges he has been informed that pursuant to Section 304 of
the Xxxxxxxx-Xxxxx Act of 2002, Officer may be subject in certain circumstances to an obligation to
pay back to Employer:
(a) Any bonus or other incentive-based or equity-based compensation received by Officer from
Employer during the twelve (12)-month period following the first public issuance or filing with the
Securities and Exchange Commission (whichever first occurs) of the financial document embodying
such financial reporting requirement; and
(b) Any profits realized from the sale of securities of Employer during such twelve (12)-
month period.
[Remainder of Page Left Blank]
-19-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written.
| EMPLOYER |
||||
| By: | /s/ Sen. Xxxx X. Xxxxxxx | |||
| Name: | Sen. Xxxx X. Xxxxxxx (ret.) | |||
| Title: | Chairman, Management Development and Compensation Committee |
|||
| OFFICER |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
-20-
APPENDIX A
A “Change in Control” shall mean the occurrence during the term of the Agreement, of any one
of the following events:
A. An acquisition of any common stock or other “Voting Securities”(as hereinafter defined) of
IndyMac Bancorp, Inc. (“Employer”) by any “Person”(as the term person is used for purposes
of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)), immediately after which such Person has “Beneficial Ownership” (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of twenty-five percent (25%) or more of the then
outstanding shares of Employer’s common stock or the combined voting power of Employer’s then
outstanding Voting Securities; provided, however, in determining whether a Change in Control has
occurred, Voting Securities which are acquired in a “Non-Control Acquisition”(as hereinafter
defined) shall not constitute an acquisition which would cause a Change in Control. For purposes of
this Agreement, (1) “Voting Securities” shall mean Employer’s outstanding voting securities
entitled to vote generally in the election of directors and (2) a “Non-Control Acquisition” shall
mean an acquisition by (i) an employee benefit plan (or a trust forming a part thereof) maintained
by (A) Employer or (B) any corporation or other Person of which a majority of its voting power or
its voting equity securities or equity interest is owned, directly or indirectly, by Employer (for
purposes of this definition; a “Subsidiary”), (ii) Employer or any of its Subsidiaries, or
(iii) any Person in connection with a “Non-Control Transaction”(as hereinafter defined).
B. The individuals who, as of the date of the Agreement are members of the Board (the
“Incumbent Board”), cease for any reason to constitute at least a majority of the members
of the Board; provided, however, that if the election, or nomination for election by Employer’s
common stockholders, of any new director was approved by a vote of at least two-thirds of the
Incumbent Board, such new director shall, for purposes of this Agreement, be considered as a member
of the Incumbent Board; provided, however, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a result of either an actual or
threatened “Election Contest”(as described in Rule 14a-l 1 promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or on behalf of a Person other
than the Board (a “Proxy Contest”) including by reason of any agreement intended to avoid
or settle any Election Contest or Proxy Contest; or
C. The consummation of:
(i) A merger, consolidation, or reorganization involving Employer, unless such merger,
consolidation, or reorganization is a “Non-Control Transaction.” A “Non Control Transaction”
shall mean a merger, consolidation or reorganization of Employer where:
(a) the stockholders of Employer, immediately before such merger, consolidation
or reorganization, own directly or indirectly immediately following such merger,
consolidation or reorganization more than fifty percent (50%) of the combined voting power
of the outstanding Voting Securities of the corporation resulting from such merger,
consolidation or reorganization (the “Surviving Corporation”) in substantially the
same proportion as their ownership of the Voting Securities immediately before such merger,
consolidation or reorganization; provided, however, that if the stockholders of Parent,
immediately before such merger, consolidation or reorganization, own directly or indirectly
immediately following such merger, consolidation or reorganization forty-five percent to
fifty percent (45% to 50%) of the combined voting power of the outstanding Voting Securities
of the Surviving Corporation in substantially the same proportion as their ownership of the
Voting Securities immediately before such merger, consolidation or reorganization, then a
Change in Control shall be deemed to have occurred
unless the members of the Incumbent Board who are not employees of Parent determine
otherwise; and
(b) no Person other than (i) Employer, (ii) any Subsidiary, (iii) any employee
benefit plan (or any trust forming a part thereat) maintained by Employer, the Surviving Corporation
or any Subsidiary, or (iv) any Person who, immediately prior to such merger, consolidation
or reorganization had Beneficial Ownership of twenty-five percent (25%) or more of the then
outstanding Voting Securities or common stock of Employer, has Beneficial Ownership of
twenty-five percent (25%) or more of the combined voting power of the Surviving
Corporation’s then outstanding Voting Securities or its common stock;
(ii) Employer’s stockholders approve a complete liquidation or dissolution of
Employer;
(iii) The sale or other disposition of all or substantially all of the assets of
Employer to any Person or Persons (other than a transfer to a Subsidiary); or
(iv) The sale or other disposition of all or substantially all of the stock or assets of
IndyMac Bank, F.S.B. to any Person or Persons (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any
Person (the “Subject Person”) acquired Beneficial Ownership of more than the permitted
amount of the then outstanding common stock or Voting Securities as a result of the acquisition of
common stock or Voting Securities by Employer which, by reducing the number of shares of common
stock or Voting Securities then outstanding, increases the proportional number of shares
Beneficially Owned by the Subject Person; provided, however, that if a Change of Control would
occur (but for the operation of this sentence) as a result of the acquisition of common stock or
Voting Securities by Employer, and after such share acquisition by Employer, the Subject Person
becomes the Beneficial Owner of any additional common stock or Voting Securities which increases
the percentage of the then outstanding common stock or Voting Securities Beneficially Owned by the
Subject Person, then a Change in Control shall occur.
A-2
This First Amendment to the Amended and Restated Employment Agreement (the “First Amendment”)
is made and entered into by and between IndyMac Bancorp, Inc. (the “Employer”), and Xxxxxxx X.
Xxxxx (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 17, 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)(iii) of the Original Agreement is hereby amended and restated as follows:
(iii) 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 (determined prior to any reduction under Section
4(b)(iv) below), 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)(iii)(A)(2) (the “LTAIC
Deferral Plan”) and has 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)(1) 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 2007
(for 2006) under the terms of Sections 4(b)(i) and 4(b)(iii) (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)(iii)(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.
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 |
||||
| By: | /s/ Xxxx X. Xxxxxxx | |||
| Sen. Xxxx X. Xxxxxxx (ret.) | ||||
| Chairman, Management Development and Compensation Committee |
||||
| OFFICER |
||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
-2-
