exv10w1



 






Exhibit 10.1




DIRECTOR EMERITUS PARTICIPANT AGREEMENT



THIS PARTICIPANT AGREEMENT (“Agreement”) is entered into between James R. Ukropina (“Participant”)
and IndyMac Bancorp, Inc., a Delaware corporation (the “Company”).




RECITALS




     Participant has been selected by the Board of Directors of the Company to receive director
retirement payments under the Amended Director Emeritus Plan adopted effective as of April 27,
2004, by the Board of Directors of the Company (the “Plan”). Entry into this Agreement is a
condition of becoming a Participant under and receiving payments under the Plan.



     THEREFORE, the parties hereto agree as follows:



     1. Retirement. Participant will retire from the Board of Directors of the Company
effective with the election of the Company’s Board of Directors at its annual shareholders meeting
on April 25, 2006 (the “Retirement Date”). Participant agrees that through the Retirement Date he
will continue diligently to perform his duties as a director of the Company and as Chairman of the
Management Development and Compensation Committee of the Board of Directors of the Company.



     2. Plan Benefits. Participant shall be entitled to receive compensation under the
Plan at the rate of $50,000 per annum for a period of five years and two months following the
Retirement Date, subject to the provisions of the Plan and of this Agreement. Such compensation
shall be paid to Participant in accordance with the following schedule:



	 	 	 	 	 
	Payment Date	 	Payment Amount
	 
	 	 	 	 
	April 30, 2007

	 	$	50,000	 
	April 30, 2008

	 	$	50,000	 
	April 30, 2009

	 	$	50,000	 
	April 30, 2010

	 	$	50,000	 
	April 30, 2011

	 	$	58,333	 






     In the event that Participant dies prior to April 30, 2011, any unpaid amounts will be paid to
the beneficiary designated by Participant pursuant to Section 6, or if no such beneficiary is
designated, to Participant’s estate, in a lump sum as soon as practicable following Participant’s
death.



     3. Acceleration of Vesting of Restricted Stock. An aggregate of 3,361 shares of
restricted stock held by Participant and originally scheduled to vest on March 15, 2007 and 2008,
will accelerate and become fully vested on the Retirement Date.



 









 





     4. Noncompetition Agreement. As a condition to Participant’s right to receive
payments under the Plan, Participant agrees that Participant will, from and after the Retirement
Date and until December 31, 2011, refrain from, directly or indirectly, performing services for,
serving as a director, consultant or other advisor of, engaging in any business with, or having any
equity interest (other than ownership of less than 5% of the outstanding stock of a publicly traded
corporation) in any business entity that is substantially engaged in mortgage banking activities
relating to single family residential loans, consumer banking business or any other business in
which the Company is substantially engaged as of the Retirement Date in any geographic market in
which the Company is then so engaged. Participant also agrees that, except at the request of the
Board of Directors of the Company, he will not seek membership on the Board of Directors of the
Company in the future either directly or indirectly (through the nomination or support of other
individuals not recommended by the Board of Directors), whether individually or as part of a group.
Participant further agrees that from and after the Retirement Date and until December 31, 2011,
Participant shall not engage in, or assist with, any activities which may cause a “change in
control” of the Company, as such term is defined in the IndyMac Bancorp, Inc. 2002 Incentive Plan,
as Amended and Restated. Notwithstanding anything herein to the contrary, if Participant engages
in any activity which would violate this Section 4, the Company shall be relieved of any further
obligation to make payments to Participant under the Plan and Section 2 of this Agreement.
Notwithstanding anything herein to the contrary, Participant’s potential service on the Board of
Directors of Internet Brands will not violate this Section 4.



     5. Confidentiality Agreement. Except as required by order of a court or
administrative agency of competent jurisdiction, and except to the extent authorized by the
Company, Participant shall maintain in confidence all non-public information concerning the
Company, its subsidiaries and their respective businesses which Participant has acquired or has
become aware of in connection with his service as a director of the Company or of any of its
subsidiaries or in connection with any consultations that Participant may have with the Company
during the period Participant is receiving any payments pursuant to the Plan. Participant further
agrees not to use any such non-public information for any purpose other than the business of the
Company. If any court or administrative agency seeks to require Participant to disclose any of such
non-public information, Participant shall, at the Company’s sole expense, take such reasonable
steps as Participant may deem appropriate to avoid or defer such disclosure until the Company has
had an opportunity to respond to such court or administrative agency. Without limiting the right
of the Company to seek any other legal or equitable remedy to which the Company may be entitled, in
the event Participant breaches the confidentiality agreements set forth herein the Company shall be
relieved of any further obligation to make payments to Participant under the Plan.



     6. Beneficiary Designation. Participant hereby designates the person whose name and
address appears following Participant’s signature below to receive any payments that are payable
under the Plan following Participant’s death. Participant may change such designation by delivery
of written notice that such change to the Company, which notice shall only be effective as provided
in Section 8 below.



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     7. Attorney’s Fees. Should it become necessary for Participant to retain legal
counsel to review and/or enforce this Agreement, the Company will reimburse Participant for
reasonable attorney’s fees, not to exceed $20,000 in the aggregate. Such fees shall be based upon
the hourly fees and any retainer required by such attorney with respect to such matter.
Participant may engage for such purposes an attorney from Gibson, Dunn & Crutcher, Latham &
Watkins, or such other firm as may be reasonably acceptable to Participant and the Company. The
Company will grant any necessary waiver of conflicts to any such agreed upon firm so that it may
represent you.



     8. Notices. Any notice required or permitted to be given under the Plan or this
Agreement shall be in writing and shall be deemed to have been given on the date of delivery if
delivered in person or by a commercial messenger service, or on the fifth day after mailing by
United States mail, registered or certified, postage prepaid and properly addressed, as follows:



	 	 	 
	Participant:

	 	Company:
	 
	 	 
	James R. Ukropina

	 	IndyMac Bancorp, Inc.
	c/o O’Melveny & Myers

	 	155 North Lake Avenue
	400 S. Hope Street

	 	Pasadena, California 91101
	Los Angeles, CA 90071-2899
	 	 
	 

	 	Attention: General Counsel






     9. Amendments. No amendment of this Agreement shall be effective unless such
amendment is set forth in a written document that is signed by both parties hereto.



     10. Waiver. No waiver of any provision of this Agreement or of the rights and
obligations of the parties hereto pursuant to this Agreement or the Plan shall be effective unless
such waiver is set forth in a written document that is signed by the party giving such waiver. Any
such waiver shall be effective only in the specific instance and for the specific purpose stated in
such writing.



     11. Severability. If any term or provision of this Agreement shall be deemed to be
invalid or unenforceable for any reason, the remainder of this Agreement shall nonetheless remain
valid and enforceable in accordance with its terms.



     12. Captions. The captions used in this Agreement are included for convenience of
reference only and shall not control or affect the meaning or interpretation of any of the
provisions of this Agreement.



     13. Entire Agreement. This Agreement, together with the Plan, sets forth the complete
and final agreement of the Company and Participant relating the subject matter hereof.



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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of

January 24, 2006.




	 	 	 
	Participant

	 	IndyMac Bancorp, Inc.
	 
	 	 
	 

	 	by:
	 

	 	 
	James R. Ukropina

	 	     Michael W. Perry
	 

	 	     Chairman of the Board





Name, Address and Social Security Number

of Beneficiary:




James R. Ukropina Trust dated 6/28/02

Attn: William Ukropina, Trustee

2339 Lambert Drive

Pasadena, CA 91107





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